INTRODUCTION. 


tters  to  the  P  .    he  subject  of  Indirect 

on  the  provisi  ins,  generically  so  called,  under 

y  of  Washingt     .  efficiently  explain  the  moti.< 

i d need  their  pr  aded,  in  consequence  of  numer - 

ests  for  copies             •  it  them  in  pamphlet  form.   But, 

they  were    pu      ^  type  ini?-  after  their  appearance  in  the 

,  other  engagei  vented  the  revision  of  the  pr 

In  the  meant  lppi'y  lost  the  interest  incident 

ntroversy  pem  nations,  the  influence  of  which 

ly  felt  in  the  11 1  Exchange.    The  indirect  claii 

r,  must  ever  c«  episode  in  diplomatic  histc 

r  we  regard  th<  i  of  them  by  the  United  Sta 

irse  adopted  ii  ugland,  the  protracted  nego      . 

etween  the  two  a  mode  for  their  abandonment, 

:her  we  take  int  of  the  arbitrators,  who,  avail 

Ives  of  a  moti< i  iticipation  of  any  regular  judg- 

and  without  dt          _•  heir  own  jurisdiction,  rem 
laiins  from  the 

give,  having  re  tions  of  the  two  governments, 

ng  the  recent  rbitrators  at  Geneva,  a  rapid 

;is  of  what  occui  late  of  our  communications  to 
urnal. 

ias   been  deemc  »  the  claims  for  indirect  I" 

f tter,  which  was  the  New  York  World,  while 

itself  was  still  b  .s  also  published  in  the  Journal. 

This  letter  will  not  o  rs  on  the  nature   and  object  of 

invention,  formed           •  pecting  its  meaning  had  arisen, 

the  same  as  we  lined,  but  it  will  serve  to  eluci- 
•he  points  in  coi 


07 


The  "  American  case,"  which  contained  the  exceptionable  matter,  was  pre- 
sented to  the  Arbitrators  at  Geneva,  on  the  15th  of  December  last.  Though 
to  a  telegraphic  intimation  from  General  Schenck,  of  the  2d  of  February,  Mr. 
Fish  had  replied  that,  "  there  must  be  no  withdrawal  of  any  part  of  the 
claims  presented ;"  it  is  in  a  note  from  Lord  Granville  to  General  Schenck, 
of  the  3d  of  that  month,  that  we  find  the  first  reference  made  to  the  indirect 
claims  in  diplomatic  correspondence.  It  is  there  said : 

"  Her  Majesty's  Government  hold  that  it  is  not  within  the  province  of  the 
Tribunal  of  Arbitration  at  Geneva  to  decide  upon  the  claims  for  indirect  losses 
and  injuries,  put  forward  in  the  "case"  of  the  United  States,  including  the  loss 
in  the  transfer  of  the  American  commercial  marine  to  the  British  flag,  the 
enhanced  payments  of  insurance,  and  the  prolongation  of  the  war,  and  the 
addition  of  a  large  sum  to  the  cost  of  the  war  and  the  suppression  of  the 
rebellion." 

On  the  opening  of  Parliament  on  the  6th  of  February,  the  Queen,  in  an- 
nouncing that  the  first  meeting  of  the  Arbitrators  had  taken  place  at  Geneva, 
declared  that  in  the  American  case,  there  were  large  claims  which,  in  her 
opinion,  were  not  within  the  jurisdiction  of  the  Arbitrators,  and  that  she  had 
caused  a  friendly  representation  to  that  effect  to  be  made  to  the  government 
of  the  United  States. 

Mr.  Fish,  in  his  note  of  February  27,  1872,  to  General  Schenck,  says,  in  re- 
gard to  the  claims  referred  to  by  Lord  Granville,  "  the  President  is  of  opinion 
that  he  could  not  abandon  them  except  after  a  fair  decision  by  an  impartial 
arbitration."  He  thus  proceeds: 

"It  is  within  your  personal  knowledge  that  this  government  has  never  ex- 
pected or  desired  any  unreasonable  pecuniary  compensation  on  their  account, 
and  has  never  entertained  the  visionary  thought  of  such  an  extravagant 
measure  of  damages  as  finds  expression  in  the  excited  language  of  the  British 
Press,  and  seems  most  unaccountably  to  have  taken  possession  of  the  minds 
of  some  even  of  the  statesmen  of  Great  Britain." 

A  note  of  Earl  Granville  to  General  Schenck,  of  March  20,  1872,  with  the 
memorandum  inclosed,  goes  into  an  extended  examination  of  the  origin  of 
the  claims  for  indirect  losses,  and  of  the  protocol  and  treaty.  This  was 
answered  at  much  length  by  Mr.  Fish,  April  16,  1872,  in  an  instruction  to 
General  Schenck,  which  concluded  by  declaring  that  "  the  extent  and  the 
measure  of  liability  and  damages  under  the  treaty  is  a  matter  for  the  supreme 
determination  of  the  tribunal  established  thereby." 

A  dispatch  from  Sir  Edward  Thornton  to  Lord  Granville,  April  30,  1872, 
thus  refers  to  a  conversation  with  the  American  Secretary  of  State. 

"  Mr.  Fish  read  me  a  part  of  the  despatch  which  he  had  sent  to  General 
Schenck,  on  the  19th  instant,  and  in  which  Mr.  Fish  expressed  his  surprise 
that  Her  Majesty's  Government  should  object  so  much  to  a  decision  by  the 
Tribunal  of  Arbitration  at  Geneva, on  the  matter  of  the  indirect  claims;  for 
that  it  must  be  aware  that  the  United  States  Government  neither  expected  nor 
desired  a  money  award  on  account  of  these  claims  and  that  the  United  States 
were  quite  as  much  interested  as  Great  Britain  in  obtaining  from  the  tribunal 
a  decision  advei  >-j  to  these  claims.  Mr.  Fish  told  me  that  Mr.  Adams  left 
New  York  for  England  on  the  24th  instant,  and  that  on  his  arrival  there  he 


would  convince  your  Lordship  1  igb  •"'  :ial  t  -at  he  was  entirely  op- 
posed to  the  principle  of  claim-  uages."  He  added:  "  But, 
during  the  whole  conversation  Anxiety  that  the  treaty 
should  not  be  allowed  to  break  ••;  >wn,  an.:  expressed  his  hope  that 
your  Lordship  would  suggest  - *  means  of  di-  > -4  of  the  indirect  claims, 
which  would  at  the  same  tim  government  and  would 
be  possible  for  that  of  the  Ur  fo  that,  even  if  the  latter 
was  not  justified  in  ever  hav  ns,— which  he  could  not 
admit, — it  was  impossible  for  ithdraw  them,  unless  it 
should  obtain  a  quid  pro  quo. 

"  If  Her  Majesty's  Govenmu  .-e  really  ar.  \  hat  the  provisions  of  the 
treaty  should  be  carried  out,  v>  d  him  was  certainly  the 
case,  why,  he  asked,  should  ii'  ..  ir  answer  to  his  despatch, 
now  on  its  way,  state  that,  a-  •inuent  had. made  it  evi- 
dent that  it  did  not  desire  a  i  ..:;•.  t  of  the  indirect  claims, 
but  merely  a  decision  on  th  inal.  Her  Majesty's  Gov- 
ernment would  consent  never  l"  ;-  >ct  claims,  under  similar 
circumstances,  when  England  might  i  a  belligerent,  and  would 
allow  the  abstract  question  ••Miefit  of  both  parties,  if 
the  United  States  Govern  me  ask  for  a  money  award 
on  the  indirect  claims,  from 

The  attempt  thus  miti;-:  the  objectionable  claims 
of  the  United  States  to  disai>]»  -nment  seeming  to  with- 
draw them,  resulted,  after-  /een  Lord  Granville  and 
General  Schenck,  in  the  dru!  jquest,  of  a  supplementary 
article  to  the  treaty.  As  1,-t  iv  Id,  1S72,  it  was  in  the 
following  terms:  -When-  iler  Brkanic  Majesty  has 
contended  in  the  recent  c<>:  overnment  of  the  United 
States,  as  follows,  namely  :  is  as  those  for  the  national 
losses  stated  in  the  case,  pi-"  the  Government  ot  the  United 
States  to  the  Tribunal  of  Arbitra  ion  it  >  have  been  sustained  by 
the  Joss  in  the  transfer  of  ul  marine  to  the  British 
flag;  the  enhanced  payments  of  insurai  r  >longation  of  the  war;  and 
the  addition  of  a  large  sum  and  the  suppression  of  the 
rebellion;  firstly,  were  n«  he  treaty  of  Washington; 
and  further,  and  secondly,  si  ".id  not  be  adnii?:  in  principle  as  growing  out 
of  the  acts  committed  by  jvi-i  vessel  1  to  have  been  enabled  to 
commit  depredations  on  th  5  shipping  of  a  bellig  »t  by  reason  of  such  a  want 
of  due  diligence  in  the  j><  >•  of  neutrai  obligations  as. that  which  is 
imputed  b>*  the  United  Sta 

"And,  whereas,  the  Go*  «.*  Majesty  has  also  declared 
that  the  principle  involved  in  the  s  ntentions,  herein  before  set 
forth,  will  guide  their  conduct  in  future.  Ami.  \s  hereas,  the  President  of  the 
United  States,  while  ad  he  uit  the  said  claims  were  in- 
cluded in  the  treaty,  ado  -  ^  tor  the  future,'  principle  contained  in  the 
second  of  the  said  con  tent  i:»n^.  .  e  that  it  will  hereafter  guide 
the  conduct  of  the  Govern*;,  nt  of  the  United  siates,  and  the  two  countries 
are  therefore  agreed  in  th  •• 


"  In  consideration  thereof  the  President  of  the  United  States,  by  and  with 
the  advice  of  the  Senate  thereof,  consents  that  he  will  make  no  claim  on  the 
part  of  the  United  States  in  respect  of  indirect  losses  as  aforesaid  before  the 
Tribunal  of  Arbitration  at  Geneva." 

The  proposed  article  was  so  far  adopted  by  our  Government,  as  to  be  sub- 
mitted to  the  Senate  of  the  United  States.  That  body,  however,  amended  it 
by  substituting  two  paragraphs,  as  follows:  "  And,  whereas,  the  Government 
of  the  United  States  has  contended  that  the  said  claims  were  included  in  the 
treaty ; 

"  And  whereas  both  Governments  adopt  for  the  future  the  principle,  that 
claims  for  remote  or  indirect  losses  should  not  be  admitted  as  the  result  of  the 
failure  to  observe  neutral  obligations,  so  far  as  to  declare  that  it  will  hereafter 
guide  the  conduct  of  both  governments  in  their  relations  with  each  other. 

"  Now,  therefore,  etc." 

The  alterations  were  not  acceptable  in  London  and  several  changes  of 
phraseology  were  suggested,  but  the  British  government  was  given  to  under- 
stand that,  owing  to  the  near  approach  of  the  adjournment  of  Congress,  it 
would  be  impossible  to  make  any  other  supplementary  treaty  if  the  one 
assented  to  by  the  Senate  was  refused. 

Lord  Granville  then  proposed  in  an  instruction  to  Sir  E.  Thornton,  of  May 
31st,  1872,  a  convention  adjourning  the  period  for  the  presentation  of  the 
arguments  under  the  5th  article  of  the  treaty,  in  order  to  afford  time  to  arrive 
at  an  agreement  on  this  subject.  As  the  Senate  would  not  be  regularly  to- 
.gether  until  December,  a  period  of  eight  months  was  named  by  Lord  Gran- 
ville in  a  note  to  General  Schenck,  of  June  8,  1S72.  This  last  note  inclosed 
the  draft  of  a  note  to  the  Arbitrators  in  which  the  agent,  after  stating 
the  delivery  of  the  points  on  which  the  British  Government  relied,  thus 
proceeds : 

"  The  undersigned  is  instructed  by  the  government  which  he  represents  to 
state  that  this  printed  argument  is  only  delivered  to  the  Tribunal  condition- 
ally on  the  adjournment  requested  in  the  note,  which  he  had  the  honour  to 
address  to  the  Tribunal  this  day  jointly  with  the  Agent  of  the  United  States, 
being  carried  into  effect,  and  subject  to  the  notice  which  the  undersigned  has 
the  honour  hereby  to  give  that  it  is  the  intention  of  Her  Majesty's  Govern- 
ment to  cancel  the  appointment  of  the  British  Arbitrator,  and  to  withdraw 
from  the  arbitration  at  the  close  of  the  term  fixed  for  the  adjournment,  unless 
the  difference  which  has  arisen  between  the  two  governments  as  to  claims 
for  indirect  losses  referred  to  in  the  note  which  the  undersigned  had  the 
honour  to  address  to  Count  Sclopis  on  the  15th  of  April  shall  have  been 
removed." 

It  had  been  deemed  impossible  to  obtain  the  action  of  the  Se*nate  on  a 
treaty  of  adjournment,  nor  was  the  American  Secretary  willing  to  unite  with 
England  in  an  application  to  the  Arbitrators  to  adjourn  by  their  own  author- 
ity the  meetings  of  the  Board,  till  an  understanding  could  be  arrived  at. 

That  the  supplemental  treaty,  if  made,  would  only  have  inaugurated  new 
questions  is  apparent  from  the  note  of  Lord  Granville,  dated  27th  May,  1872, 
to  General  Schenck,  in  which  he  declines  saying  whether  the  Article  as. 


amended  by  the  Senate  elude  the  claims  for  national 

expenditures  in  pursuit  ers. 

He  adds,  "  Her  Maje-  opinion  that  the  definition,  as 

therein  expressed,  of  tl  "<;ii  governments  are  prepared  to 

adopt  for  the  future,  is  mpoi  sible  to  state  to  what  it  is  or  is 

not  applicable,  and  the:  mly  lead  to  future  misunder- 
standings." 

In  his  note  of  20th  M  ,i  u1  .  .lie  thus  alludes  to  those  claims; 

''Nor  did  Her  MajV>t  to  the  introduction  of  claims 
for  the  expense  of  the  i  :id  capture  of  the  Alabama  and  other  vessels, 

notwithstanding  the  d<  •  ,  tlmigh  mentioned  during  the 

conferences  as  direct  d;*  'oper  scope  of  the  arbitration." 

This  is  quoted  by  G^;  e  to  Earl  Gran ville,  May  28th, 
1*72,  in  rej)ly  to  the  ret  .  y  whether  they  would  be  ex- 
cluded by  the  .supplemental  arl  the  Senate, — He  adds: — 

"  The  Government  o;  i.-  of  opinion  that  the  language  of 
the  Senate  cannot  be  ii  >se  claims;  but  I  am  now  in- 
structed to  say  that  the  A:-'1  r  -  fo  -in  adopted,  as  to  the  proceed- 
ings before  the  Arbitral  mderstood  to  prevent  only  the 
presentation  of  the  clai  econd  contention  of  Her  Maj- 
esty's Government."* 

The  great  problem  In  ims  out  of  the  case  which  both 

parties  ardently  desired  sed  in  negotiations,  at  London 

and  Washington,  had  t  tinally  solved  by  the  action  of 

the  Arbitrators.  Aval  lot  ion  of  the  English  agent  for 

an  adjournment,  they  ed,  on  the  10th  of  June,  an 

opinion  on  the  merits  <  •  parties  assumed,  left  no  excuse 

for  their  longer  einban  f  the  Tribunal. 

The  President,  Conn'  t  the  application  for  adjourn- 
ment was  before  the  A  was  based  on  the  difference 
between  the  two  Gover  etency  of  the  tribunal  to  deal 
with  certain  claims  adv  United  States,  which  he  enu- 
merated, proceeds: — "  1  .t  ^ropose  to  express  or  imply  any 
opinion  upon  the  point  -een  the  two  governments,  as 


*Our  views,  on  the  inexj  itie.-s  are  greatly  strengthened  by 
what  is  said  in  the  London  JicitOi  '  11,  1872,  in  a  notice  which  precedes 
an  extract  tnm  our  letter  »lic  opinion  seems  now  as  decided 
in  America  as  on  this  sid«r  Indirect  Claims"  ought'not  to  have 
formed  any  part  of  the  An  his  time  that  part  of  the  case  totally 
blocks  the  progress  of  th.-  is  made  on  the  part  of  the  govern- 
ment of  the  United  Statv>  T  the  obstacle  presented  by  these 
liteless  but  obstructive  clai  if  these  claims  should  not  be  for- 
mally withdrawn,  but  that  weeded  with  as  though  they  were 
withdrawn,  an  agreement  ^%,me  time,  between  the  two  Power?  that 
Oreat  Britain  will  never  in.  .  ailure  occasion,  when  we  may  have 
been  belligerent  and  the  I  h  an  arrangement  as  tins  is  open  to 
all  the  disadvantages  of  an  t  every  lawyer  knows,  is  the  fruit- 
ful parent  of  misunder.stai  i  that  Great  Britian  is  not  to  make 
indirect  claims  in  the  fnti  cory." 


8 

to  the  interpretation  or  effect  of  the  treaty.  But  it  seems  to  them  obvious 
that  the  substantial.object  of  the  adjournment  must  be  to  give  the  two  govern 
ments  an  opportunity  of  determining  whether  the  claims  in  questioi 
shall,  or  shall  not,  be  submitted  to  the  decision  .of  the  Arbitrators 
and  that  any  difference  between  the  two  governments  on  this  poin 
may  make  the  adjournment  unproductive  of  any  useful  effect,  and  after  j 
c'elay  of  many  months,  during  which  both  nations  may  be  kept  in  a  state  o 
painful  suspense,  may  end  in  a  result,  which,  it  is  to  be  presumed,  both  gov 
ernments  would  equally  deplore,  that  of  making  this  Arbitration  wholh 
abortive.  This  being  so,  the  Arbitrators  think  it  right  to  state  that,  after  th\ 
most  careful  perusal  of  all  that  has  been  urged  on  the  part  &f  the  government 
of  the  United  States,  in  respect  of  these  claims,  they  have  arrived,  individu 
ally  and  collectively,  at  the  conclusion  that  these  claims  do  not  constitute 
upon  the  principles  of  international  law  applicable  to  such  cases,  goodfoun 
dationforan  award  of  compensation  or  computation  of  damages  betweer 
nations,  and  should  upon  such  principles  le  wholly  excluded  from  the  con 
sideration  of  the  Tribunal  in  making  its  award,  even  if  there  were  no  dis 
agreement  between  the  two  governments  as  to  the  competency  of  the  Trihuna 
to  decide  thereon." 

On  the  same  day,  the  counsel  of  the  United  States  informed  their  ageni 
that  in  their  opinion,  the  announcement  made  by  the  Tribunal  must  be  re 
ceived  by  the  United  States  as  determinative  of  its  judgment  upon  th< 
question  of  public  law  involved,  upon  which  the  United  States  have  insistec 
upon  taking  the  opinion  of  the  Tribunal. 

The  declaration  of  the  Tribunal  was  stated  by  the  Agents,  after  reference  tc 
their  respective  governments,  to  be  satisfactory  to  both  of  them.  The  follow- 
ing entry  was  accordingly  made  in  the  protocol  of  the  27th  of  June,  1872. 

"  Mr.  Bancroft  Davis  said  that  he  made  no  objection  to  the  granting  of  the 
request  made  by  Lord  Tentenlen,  to  be  permitted  to  withdraw  his  application 
for  an  adjournment,  and  to  file  the  argument  of  Her  Britanic  Majesty's  Gov- 
ernment. Count  Sclopis,  on  behalf  of  all  the  Arbitrators,  then  declared  that 
the  said  several  claims  for  indirect  losses,  mentioned  in  the  statement  made  by 
the  Agent  of  the  United  States  on  the  25th  instant,  and  referred  to  in  the 
statement  just  made  by  the  Agent  of  Her  Britanic  Majesty,  are,  and  from 
henceforth  will  be,  wholly  excluded  from  the  consideration  of  the  Tribunal ; 
and  directeJ  the  Secretary  to  embody  this  declaration  in  the  Protocol  of  this 
day's  proceedings." 

Thus  ended  this  diplomatic  episode.  The  American  journals,  which  favored 
the  Administration,  deemed  it  a  great  triumph  that  we  had  secured  a  judg- 
ment against  ourselves;  while  the  Queen,  in  her  prorogation  speech,  10th  of 
August,  rejoices  to  inform  Parliament  ihat  the  controversy,  in  consequence 
of  the  presentation  of  the  American  claims  for  indirect  damages,  has  been 
composed  by  a  spontaneous  declaration  of  the  Arbitrators,  entirely  consistent 
with  the  views  announced  by  her  at  the  opening  of  the  session. 

The  different  understanding  of  the  two  governments  on  a  matter  so  e"ssen- 
tial  to  the  object  of  the  treaty  as  the  extent  of  the  claims  to  be  adjusted  would 
seem  inexplicable,  were  it  not  for  the  fact  that,  though  using  the  same  lan- 
guage, scarce  any  conventional  arrangement  has  been  made  between  the 


United  States  and  England,  in  the  interpretation  of  which  the  parties  agreed. 
In  the  present  case,  something  may  be  imputed  to  the  fact,  which  we  learn 
from  the  Parliamentary  Debates,  that  no  part  of  the  treaty,  except  the  "three 
rules,"  had  been  submitted,  as  is  usual  in  such  cases,  to  the  law  officers  of  the 
Crown. 

Though  the  indirect  claims  were  not  stated  in  so  many  words  to  be  with- 
drawn, they  were  merged,  as  we  have  elsewhere  had  occasion  to  remark, 
"  in  the  amicable  settlement"  effected  by  the  treaty.  That  such  has  been 
the  declaration  of  the  British  Commissioners  is  admitted,  as  to  four 
of  them  in  the  American  argument  —  by  the  Marquis  of  Ripon  and  Sir 
Stafford  Xorthcote  in  their  places  in  Parliament,  and  by  Sir  E.  Thornton 
and  Mr.  Bernard  on  public  occasions  sought  by  themselves.  Sir  John  A.  Mac- 
donald  confines  himself,  in  his  speech  of  3d  of  May  1872,  before  the  Domin- 
ion Parliament,  to  the  articles  regarding  Canada,  but  we  know  from  that 
Minister  himself,  in  personal  intercourse,  that  he,  in  no  wise,  differs  from  his 
colleagues  as  to  the  Alabama  Claims.  Nor  do  we  understand  that  any  thing, 
in  a  contrary  sense,  was  expressed  at  any  meeting  of  the  Plenipotentiaries  by 
our  Secretary  of  State,  as  the  organ  of  the  American  Commissioners;  while 
our  Envoy  in  England,  himself  a  Commissioner,  listened  to  the  statements 
of  Ministers  in  both  houses  of  Parliament,  in  which  the  fact  of  the  aban- 
donment of  the  indirect  claims  was  assumed,  without,  in  his  subsequent 
interviews  with  Lord  Granville,  giving  any  intimation  of  the  mistake 
of  the  British  government,  if  any  existed.  Our  present  Attcrney  Gen- 
eral, who  was  likewise  a  Plenipotentiary,  and  who,  in  such  cases  as  the 
construction  of  a  treaty  would,  under  ordinary  circumstances,  be  appealed  to 
as  the  law  officer  of  the  government,  has  given  no  opinion.  Nor  have  the 
views  of  the  "  American  case"  received  any  sanction  from  the  venerable  Jus- 
tice Nelson,  or,  as  far  as  the  public  are  apprised,  from  the  remaining  member 
of  the  Commission,  on  the  part  of  the  United  States,  the  late  Attorney  Gen- 
eral Hoar. 

We  have,  as  we  were  preparing  this  introduction,  received  the  British  and 
American  arguments,  laid  before  the  Geneva  Tribunal  in  June  last.  The 
chapter  in  the  American  argument  relative  to  Indirect  claims,  as  separately 
published,  had  previously  reached  us. 

The  action  of  the  Tribunal,  in  removing  these  claims  whojly  from  its  con- 
sideration, confines  the  last  paper  to  an  exclusively  historical  interest.  It 
is  strenuously  urged,  despite  of  the  discussions  that  had  been  going  on  for 
upwards  of  four  months  and  the  concessions  made  by  Mr.  Fish,  that  the 
fact  that  the  indirect  claims  were  not  waived  by  the  American  commission- 
ers, ought  to  have  been  known  to  their  British  colleagues,  or  rather 
that  no  reason  existed  for  the  interpretation  given  by  them  to  the 
treaty  in  that  respect.  It  is  maintained  that  there  is  no  distinction  be- 
tween the  direct  and  indirect  claims  and  that  the  latter  are  "  by  the  express 
terms,  the  spirit  as  well  as  the  language  of  the  treaty  referred  to  the  Tribu- 
nal." The  argument  draws  a  distincton  between  the  claims  previously  asserted 
by  our  government,  founded  on  the  premature  recognition  of  belligerency, 
and  which  it  admits  were  abandoned  by  President  Grant,  and  those  which,  it 
is  maintained,  resulted  from  the  escape  of  the  Confederate  cruisers. 


10 

It  is  denied  that  to  pay  the  price  of  certain  ships  destroyed  is  due  repara- 
tion. Considerations  of  international  obligations  forbid  the  counsel  of  the 
United  States  to  press  for  extreme  damages,  on  account  of  the  national  in- 
juries suffered  by  the  nation  itself,  through  the  negligence  of  Great  Britain, 
but  they  desire  the  judgment  of  the  Tribunal  on  this  particular  question  for 
their  own  guidance  in  their  future  relations  with  Great  Britain. 

All  the  counsel  not  only  indorse,  but  reiterate  the  statements  so  offensive  to 
England,  assumed  to  have  been  written  by  Mr.  Bancroft  Davis,  in  the  original 
case,  thereby  absolving  that  gentleman  from  exclusive  responsibility  for  them. 
Not  only  are  the  motives  of  Great  Britain,  as  evinced  in  the  speeches  of  in- 
dividual Ministers  and  the  acts  of  the  government,  (including  the  premature 
recognition  of  Confederate  belligerency  though  abandoned  as  a  basis  of 
claims,)  referred  to  as  explaining  her  course  with  respect  to  the  Alabama 
and  the  other  rebel  cruisers,  but  the  counsel  go  back  to  a  period  anterior 
to  the  colonization  of  these  States  to  show,  by  the  piratical  enterprises 
of  Drake  and  Hawkins,  why  up  to  1819  England  had  no  neutrality  law. 

The  subject  of  indirect  claims  is  not  touched  on  in  the  British  argument, 
but  it  repeats :  "  The  claims  for  money  alleged  to  have  been  expended  in 
endeavoring  to  capture  or  destroy  any  Confederate  crusier  are  not  adinij- 
sible  together  with  the  claims  for  losses  inflicted  by  such  cruiser." 

The  exaggerated  character  of  these  claims  is  examined  in  connection  with  a 
further  report  of  the  British  Admiralty,  and  it  is  attempted  to  be  shown  that 
to  the  inefficiency  of  the  proceedings  of  the  A?nerican  navy,  rather  than  to 
any  disregard  by  England  of  her  neutral  obligations  was  the  prolonged  career 
of  the  Confederate  crusiers  to  be  attributed. 

It  appears  from  the  "  cases"  and  "  argument"  filed,  on  the  part  of  Eng- 
land, that  the  indirect  claims,  the  withdrawal  of  which  was  insisted  on,  as  a 
sine  qua  non  to  the  continued  existence  of  the  Tribunal,  were  not  the 
only  ones,  which  were  deemed  by  the  British  government,  not  to  be  within 
the  submission.  While  they  allowed  claims  for  expenditures  incurred  in  the 
pursuit  of  cruisers,  whose  depredations  were  included  in  the  generic  term  of 
Alabama  claims,  to  go  before  the  Tribunal,  they  insisted  that  all  claims  must 
be  confined  to  the  acts  of  those  cruisers,  viz:  the  Florida,  the  Alabama,  the 
Georgia  and  the  Shenandoah.  The  American  argument  admits  that  these 
vessels  were  the  only  ones  "  which  left  Great  Britain  to  receive  their  arma- 
ment, and  which  afterwards  without  having  been  engaged  in  any  other 
service,  actually  armed  for  war,"  though  in  accordance,  as  we  conceive,  with 
the  same  unwise  policy  that  induced  the  presentation  of  the  indirect  claims, 
the  "case"  and  "counter-case"  included  claims  for  acts  committed  by  all 
other  confederate  cruisers,  several  of  which  are  no  further  indicated  to  the 
British  government  than  as  having  been  enumerated  in  one  of  the  volumes 
of  "  Claims  of  the  United  States  against  Great  Britain,"  which  the  counter- 
case  says,  "  it  is  believed,  were  in  the  Library  of  the  foreign  office,  before  the 
High  Commissioners  received  their  instructions."  In  the  "argument"  how- 
ever, there  are  only  five  vessels,  not  recognized  by  England  as  coining  within 
the  term  of  "Alabama  claims,"  viz:  the  Sumter,  the  Nashville,  the  Retribu- 
tion, the  Tallahassee  and  the  Chickamauga,  as  to  which  it  is  now  attempted 


11 

to  prove  that  Great  Britain  failed  to  fulfil  her  duties  to  the  United  States. 
The  claim  from  these  vessels  is  mainly  put  on  facilities  alleged  to  have  been 
afforded  them  in  British  colonial  ports. 

The  high  character  of  Mr.  Adams,  and  his  eminent  qualifications  have 
hitherto  prevented  any  allusion  to  the  anomalous  position,  which  he  occupies 
as  an  Arbitrator  or  Judge,  after  having  advocated  before  the  British  govern- 
ment, as  our  resident  Minister  in  England,  those  claims  on  the  validity  of 
which  he  is  now  called  to  pronounce.  Nothing  is  better  understood  than  that 
a  lawyer,  when  raised  to  the  bench,  shall  not  decide  the  cases  which  he  argued 
as  counsel  at  the  bar.  The  assertion  that  the  indirect  claims  had  been 
persistently  urged  on  England,  previously  to  the  treaty,  rests  mainly  on  the 
despatches  of  Mr.  Adams;  while  he  unites  with  the  other  Arbitrators  in  de- 
claring that  "  after  the  perusal  of  all  that  has  been  urged  on  the  part  of  the 
government  of  the  United  States,  in  respect  to  these  claims,,  they  have  ar- 
rived individually  and  collectively,  at  the  conclusion  that  these  claims  do  not 
constitute  upon  the  principles  of  international  law  applicable  to  such  cases, 
good  foundation  for  an  award  of  compensation  or  computation  of  damages 
between  nations." 

If  arbitration  is  hereafter  recognized  as  an  international  institution,  it  is 
essential  for  the  success  of  a  system,  which  it  is  proposed  to  substitute  for  an 
appeal  to  arms  as  a  pacific  solution  of  all  controversies,  that  the  constitution 
of  those  tribunals  should  be  distinctly  understood,  and  that  it  should  be 
known  whether  the  arbitrators  named  by  the  parties  themselves  should  be  the 
advocates  of  their  respective  countries,  or  whether  they  should,  equally  with 
those  appointed  by  foreign  powers,  decide  impartially  as  judges. 

We  have  no  official  publication  of  the  Tribunal  since  the  withdrawal  of  the 
indirect  claims,  and  if  it  be  correct,  as  the  public  journals  of  to-day  announce, 
that  the  questions  of  law  there  mentioned  are  still  under  adjudication,. it  is 
evident,  in  as  much  as  they  reach  the  very  foundation  of  the  controversy, 
that  no  decision  as  to  the  merits  of  the  cases,  confessedly  within  their  juris- 
diction, has  as  yet  been  arrived  at  by  the  arbitrators. 

W.  B.  LAWRENCE. 
Ochre  Point,  Newport,  Rhode  Island,  l'2th  of  August,  1872. 


TREATY  OF  WASHINGTON. 


OCHRE  POINT,  NEWPORT,  R.  L,  ) 
May  21,  1871.      ) 

To  the  Editor  of  the  World : 

SIR:  I  had  intended  to  prepare  a  memoir,  tracing  to  their  ori- 
gin the  several  points  of  dispute  involved  in  the  new  treaty.  For 
this  I  have  extensive  materials,  not  merely  in  printed  documents, 
but  in  the  notes  which  I  have  made  during  many  years  past,  going 
back,  in  reference  to  some  of  the  subjects,  to  my  connection  with 
the  English  mission.  Interruptions  which  I  could  not  prevent 
have  so  far  retarded  my  work  that  I  fear  that  I  shall  not  be  able 
to  complete  the  paper,  in  a  manner  satisfactory  to  myself,  before 
the  interest  in  it  will  be,  in  a  great  measure,  lost  by  the  final 
action  of  the  Senate.  I,  therefore,  take  the  liberty  of  sending  you 
this  imperfect  memorandum. 

The  able  articles  which  have,  from  time  to  time,  appeared  in  the 
World  on  the  topics  now  involved,  and  with  which,  as  well  as 
with  your  remarks  on  the  merits  of  the  work  of  the  High  Com- 
mission, I  fully  concur,  supersede  the  necessity  for  your  readers  of 
turther  elaborate  elucidations.  I  cannot,  however,  withhold  the 
expression  of  my  gratification  that,  regardless  of  its  bearing  on 
mere  partisan  politics,  you  have  taken  a  statesmanlike  view  of  the 


14 

subject,  appropriate  to  a  journal  of  controlling  influence,  and 
which,  as  to  what  concerns  our  international  relations,  ought  to 
have  no  other  guide  than  the  honor  and  interest  of  our  country. 

The  merit,  in  ray  eyes,  of  the  treaty  arises  as  much  from  what 
is  not  in  it  as  from  its  positive  stipulations.  The  reproduction  in 
the  paper  ascribed  to  Lord  Tenterden,  and  which  contains  an  au- 
thoritative exposition  of  the  British  case  so  far  as  regards  the 
Alabama  claims,  of  my  remarks  made  at  the  Social  Science  Con- 
gress at  Bristol  in  1869,  may  justify  a  reference,  without  incurring 
the  charge  of  presumption,  to  the  accordance  of  the  views  then 
expressed  with  the  terms  of  the  present  arrangement.  I  am  well 
satisfied  to  find  that  no  sanction  is  anywhere  given  to  the  com- 
plaints against  the  issue  of  the  British  proclamation  of  neutrality, 
put  forward  by  Mr.  Seward,  apparently  in  ignoiance  of  the  dis- 
tinction between  the  recognition  of  belligerent  rights  and  the 
acknowledgment  of  the  independence  of  a  State.* 

It  has  ever  seemed  to  me  that  as  the  law  of  nations  cannot  be 
enforced  by  any  penal  legislation,  like  the  internal  law  of  a  State, 
and  must  depend  for  its  observance  on  the  moral  sense  of  the 
civilized  world,  to  attempt  to  apply  to  it  considerations  of  tem- 
porary expediency  is  to  take  from  it  its  only  sanction. 

Important  as  the  law  of  nations  is  as  a  rule  in  the  intercourse 
of  independent  sovereignties,  the  necessity  of  its  recognition  in 
civil  wars — that  is  to  say  in  the  contests  between  members  of  the 
same  society,  which,  passing  beyond  the  intervension  of  the  mag- 
istrate or  suppression  by  the  police,  have  assumed  a  belliger- 
ent character  in  the  opposing  array  of  regularly  constituted 
armies — is  even  more  imperative  than  in  international  hostilities. 
Who  can  tell  to  what  extent  the  horrors  of  war  would  be  augmen- 
ted (though  we  may  have  some  indications  of  it  in  the  contest 
between  the  Commune  and  the  Versailles  Assembly)  it  the  rules 
of  belligerency  were  not  applied  in  those  cases  in  which,  as  it  is 


*"  It  is  notorious,  that  neither  England  nor  France  acknowledged  the  Southern  Confed- 
eracy, as  a  new  State.  The  Cabinets  of  both  countries  may  have  wished  to  see  the  Union 
of  the  United  States  severed  into  two  political  groups,  and  to  see  the  menacing  preponder 
anceofthe  great  confederation  crushed,  but  they  tor>k  good  care  to  avoid  the  premature 
acknowledgement  of  the  "  Confederacy"  as  a  political  body  definitively  separated  from  the 
Northern  Union. 

On  the  other  hand,  the  European  powers  absolutely  acknowledged,  at  an  early  day,  the 
Southern  States  as  a  belligerent  party.  Were  they  wrong  in  doing  so  ?"—Mlu,ntsihUi— 
Opinion  impartial^  sur  la  question  de  I'  Alabama. 


15 

Avell  said  by  Vattel,  "civil  wars,  breaking  the  bonds  of  society 
and  of  the  government,  give  rise  in  a  nation  to  two  independent 
parties  who  acknowledge  no  common  judge." 

In  our  late  civil  war,  so  far  as  the  parties  directly  involved  in  it 
were  concerned,  the  apprehension  of  retaliation,  always  appealed 
to  when  the  two  sides  approximate  to  one  another  in  strength, 
.prevented  the  application  of  measures  which  were  threatened  in 
the  first  proclamation  of  the  President.  Though  some  privateers- 
men  were  subjected  to  a  trial  for  piracy,  a  cartel  was  signed  in 
July,  1862,  by  a  general  officer  of  the  United  States,  and  a  general 
officer  of  the  Confederates,  described  as  "  having  been  commis- 
sioned by  the  authorities  they  respectively  represented,"  for  a 
general  exchange  of  prisoners,  and  in  this  were  included  prisoners 
taken  on  board  of  private  armed  vessels. 

Though  all  other  countries,  with  the  exception,  perhaps,  of  China 
and  Turkey,  equally  with  Great  Britain,  recognized  the  belligerent 
rights  of  the  confederates,  and  though  any  other  course  would 
have  justly  exposed  her  to  the  reproach  of  having  violated  all  the 
safe  precedents  of  international  law,  the  instructions,  which  Mr. 
Adams  constantly  evaded,  to  demand  the  revocation  of  the  proc- 
lamation were  incessant,  and  all  the  injuries  resulting  from  the 
maritime  operations  ot  the  confederates  were  attributed  to  the 
recognition  of  belligerent  rights — in  other  words,  to  England 
having  refused,  what  the  United  States  themselves  did  not  dare  to 
do,  to  treat  the  confederates  as  out  of  the  protection  of  the  law  of 
nations.  As  Mr.  Canning,  in  the  analogous  case  of  the  Greek  rev- 
olution, explained,  there  is  no  alternative,  if  the  belligerency  of 
the  revolutionary  party  was  not  acknowledged,  but  to  regard  them 
as  pirates  and  hold  the  ancient  government  responsible  for  all  in- 
juries inflicted  by  them. 

It  was  in  vain  that  Great  Britain  showed  that  the  United  States 
had  given  to  the  world  the  strongest  evidence  of  the  existence  of 
actual  war  by  the  establishment,  among  other  acts,  of  a  block- 
ade which  could  only  exist  as  an  incident  of  war ;  while,  unless 
there  was  belligerency,  there  was  no  excuse  for  the  search  of 
neutral  vessels,  much  less  for  their  condemnation  for  violating  a 
blockade  or  carrying  contraband.  The  blockade  was  only  one  of 
the  'consequences  of  the  existence  of  war;  and  whether  it  was 
officially  announced  or  not  to  the  British  government,  before  the 
issue  of  the  Queen's  proclamation,  as  I  have  elswhere  had  frequent 


16 

occasion  to  remark,  was  wholly  immaterial,  provided  a  civil  war 
then  existed.  That  the  proclamation  had  no  unfriendly  character 
may  be  reasonably  inferred  from  the  fact,  that  it  was  advocated 
by  the  best  friends  of  the  northern  cause,  including  Mr.  Forster, 
and  was  considered  by  Mr.  Se ward's  minister,  Mr.  Adams,  to  be, 
in  some  respects,  advantageous  to  the  United  States.  "At  any 
rate,"  he  said  in  a  dispatch  to  the  Secretary  of  State,  "the  act  had 
released  the  government  of  the  United  States  from  responsibility 
for  any  misdeeds  of  the  rebels  towards  Great  Britain.  If  any  of 
their  people  should  capture  or  maltreat  a  British  vessel  on  the 
ocean,  the  reclamation  must  be  made  only  upon  those  who  had 
authorized  the  wrong.  The  United  States  would  not  be  liable." 

That,  as  a  precautionary  measure  for  the  interests  of  British 
commerce,  it  was  not  premature,  was  judicially  established  in  the 
"prize  cases"  decided  by  the  Supreme  Court  of  the  United 
States.  A  capture  was  made  as  early  as  the  12th  of  May,  of  a 
British  vessel,  for  running  the  blockade  of  Charleston,  the  Presi- 
dent's message  declaring  the  blockade,  which  was  issued  the  19th 
of  April,  having  gone  into  operation  the  30th  of  the  same  month. 
The  British  proclamation  bears  date  the  13th  of  May. 

Vessels  and  cargoes  of  the  aggregate  value  of  millions  were 
captured  on  the  ground  of  the  violation  of  the  neutral  obligations 
of  England,  and  the  rule  of  continuous  voyages  was  applied,  in  a 
more  stringent  sense  than  ever  had  been  attempted  by  Lord 
Stowell,  to  cases  of  blockade  and  contraband,  before  any  knowl- 
edge could  possibly  have  been  received,  on  this  side  of  the  At- 
lantic, of  the  existence  of  the  Queen's  proclamation. 

If  there  was  no  belligerency,  nothing  can  be  clearer  than  that 
those  captures  were  all  unauthorized.  Consequently,  the  proceeds 
of  the  prizes  would  constitute  a  legitimate  claim  against  the 
United  States. 

Nor  is  it  a  slight  evidence  of  the  fallacy  of  Mr.  Seward's  posi- 
tion as  to  confederate  recognition,  that  it  has  received  no  sanction 
from  the  most  eminent  of  our  own  publicists,  President  Woolsey 
having  rejected  it  as  altogether  untenable.  It  was  stated  by  the 
publisher,  Little,  in  his  testimony  in  the  case  of  Lawrence  vs. 
Dana,  that  Mr.  Seward  had  refused  to  take  copies  of  the  second 
edition  of  Lawrence's  Wheaton,  as  Mr.  Marcy  had  of  the  first, 
for  our  ministers  and  consuls  abroad,  on  account  of  the  author's 
repudiation,  branded  as  disloyal,  of  the  Secretary's  doctrine?,  and 


IT 

that  Mr.  Dana  was  employed  to  make  a  loyal  book ;  yet  Lord 
Tenterden,  in  the  paper  referred  to,  says  that  "  the  strongest  ar- 
guments in  favor  of  the  recognition  of  confederate  belligerency 
are  to  be  found  in  the  notes  of  Mr.  Dana's  eighth  edition  of 
Wheaton.'" 

A  still  more  important  circumstance,  in  this  connection,  is  the 
view  uniformly  taken  of  the  matter  by  our  minister  in  London. 
I  have  already  referred  to  Mr.  Adams's  despatch,  showing  that 
the  recognition  of  rebel  belligerency  was  not  without  its  advanta- 
ges for  us.  In  another  of  15th  of  April,  1867,  he  fully  relieves 
himself  from  all  responsibility  for  the  policy  enjoined  on  him. 
Having  been  asked  his  opinion  by  Mr.  Seward,  "in  regard  to 
what  appears  to  be  the  only  obstacle  to  arbitration  left,"  he  tells 
him  that  if  the  <]uestion  of  recognizing  belligerency  co_Jd  be  sus- 
ceptible of  being  submitted  to  umpirage  the  doing  so  would  not 
be  advisable  for  us. 

"The  concession  ot  a  possibility  that  the  exercise  of  that  sover- 
eign right  of  a  State  could  be  drawn  into  question  might  have  the 
effect  of  tying  our  own  hands  in  future  cases."  He  adds  :  "  As  it 
•is,  the  very  agitation  of  that  question  in  America,  to  which  you 
allude  as  connected  with  the  inchoate  Irish  movement,  has  the 
effect  of  undermining  the  foundation  of  our  claim  to  complain  in 
the  present  instance.  It  must  be  obvious  to  you  that  the  adoption 
of  the  propositions  pressed  in  Congress  must  have  the  necessary 
effect  of  weakenino-  our  chances  of  getting  any  valuable  result  at 
all  from  arbitration  ;  for  if  we  follow  the  suit  of  England  when 
the  respective  positions  come  to  be  reversed,  I  do  not  perceive 
how  we  do  not,  part  passu,  come  to  justify  her  conduct." 

It  is  not  my  intention  to  be  the  apologist  of  Great  Britain,  but, 
in  view  of  the  pendency  of  the  treaty  before  the  Senate,  and  of 
its  impartial  discussion,  it  in  ly  not  be  improper  to  suggest  that, 
had  England  wished  to  avail  herself  to  our  detriment  of  the  inter- 
nal difficulties  in  which  we  were  involved,  she  had  many  means  of 
doing  so  without  exposing  herself  to  any  claims  for  vindictive 
•damages.  No  rule  of  international  law  prevents  a  country  from 
opening  its  ports  to  privateers  or  to  the  prizes  made  by  them  or 
by  public  cruisers,  provided  it  does  it  equally  as  to  both  parties, 
and  though  a  prize  court  cannot  sit  in  a  neutral  country,  prizes 
taken  into  a  neutral  port  may  be  condemned  in  the  courts  of  the 
belligerent. 


18 

Now,  in  reference  to  either  the  United  States  or  th  e  confederates 
as  is  shown  in  the  abortive  attempt  of  Mr.  Seward  to  involve  Eng- 
land and  France  in  our  contest  by  a  convention  with  the  United 
States  adopting  the  rule  of  the  "declaration  of  Paris,"  but  which 
neither  would  sign  without  stating  that  it  had  no  application  to  the 
existing  war,  it  is  apparent  that  England  would  not  have  considered 
the  admission  of  privateers  or  their  prizes  into  her  ports  as  repug- 
nant to  her  obligations  as  a  party  to  that  "  declaration." 

Nor  were  the  United  States  invulnerable  as  to  the  efficacy  of 
the  blockade,  especially  when  first  established.  When  the  "decla- 
ration of  Paris"  was  made,  it  was  announced  in  the  English  Parli- 
ament that,  if  the  rule  of  blockade  as  there  laid  down  was  carried 
out,  the  whole  British  navy,  in  the  event  of  a  war,  would  not  be, 
adequate  to  the  blockade  of  the  French  ports. 

It  would  seem,  even  according  to  the  official  article  inserted  in 
the  Moniteur,  after  the  visit  of  Roebuck  and  Lindsay  to  Corn- 
piegne,  that,  had  England  consented,  France  was  quite  ready  to 
acknowledge  the  independence  of  the  confederates  and  to  set  at 
naught  the  blockade,  which  was  sustained  by  vessels  suddenly 
converted  from  merchantmen  into  ships  of  war,  and  in  no  condi- 
tion to  resist  the  combined  navies  of  England  and  France.  What 
the  views  of  the  Emperor  were  as  to  the  southern  confederacy 
appears  in  his  letters  to  the  officers  sent  out  to  Mexico,  which  "were 
published  at  the  time  and  never  disavowed.  In  one  of  them  he 
says:  "We  have  an  interest  in  this,  that  the  republic  of  the 
United  States  be  powerful  and  prosperous  ;  but  we  have  none  in 
this,  that  she  should  seize'  possession  of  all  the  Mexican  Gulf,  do- 
minate from  thence  the  Antilles  as  well  as  South  America,  and  be 
the  sole  dispenser  of  the  products  of  the  New  World." 

While  I  could  never  see  any  force  in  the  alleged  offence  impute  1 
to  the  Queen's  proclamation,  and  have  so  declared,  I  have  always 
maintained  that  England  was  liable  for  the  depredations  of 
confederate  cruisers,  which  had  been  built  for  them  or  fitted  out 
in  English  ports  with  the  intention  of  being  employed  against  the 
United  States  ;  and  most  especially  was  she  so  liable  for  the  acts  of 
such  cruisers,  wherever  built  or  equipped,  as  had  made  either  Eng- 
land or  her  colonies  the  base  of  hostile  expeditions.  And  in  con- 
sidering this  matter  it  is  wholly  immaterial  what  construction  was 
given  by  her  courts  to  her  neutrality  acts.  Neither  the  obligation 
of  Great  Britain  nor  our  rights  are  to  be  tested  by  the  adjudica- 


19 

tions  of  her  tribunals,  especially  of  her  common  law  courts,  but 
only  by  the  law  of  nations.  This,  indeed,  is  recognized  in  the 
regret  expressed  by  Her  Britanic  Majesty  for  the  escape,  under 
whatever  circumstances,  of  the  Alabama  and  other  vessels  from 
.British  ports,  and  for  the  depredations  committed  by  those  vessels, 
and  this  avowal  is  made,  notwithstanding  the  decision  in  the 
Alexandra. 

There  is  certainly  no  little  difficulty  in  always  determining  what 
acts  affecting  belligerents  a  neutral  State  can  lawfully  do.  The 
rule  formerly  was  that  both  the  State  and  its  citizens  might  do 
what  they  pleased  in  aiding  either  party,  provided  they  treated 
them  both  alike  ;  and  cases  have  occurred  where  a  nation  has 
been  permitted  to  furnish  to  a  belligerent  military  aid  when  that 
aid  had  been  stipulated  in  a  treaty  antecedent  to  the  war.  A  pro- 
vision in  the  treaty  of  1778,  with  France,  allowed  her  to  carry  her 
prizes  into  our  ports,  while  those  of  her  enemy  were  forbidden  to 
enter  except  for  stress  of  weather ;  and  the  difficulties  which  it 
occasioned  are  familiar  to  all  conversant  with  our  early  diplomatic 
history. 

It  does  not  seem  very  easy  to  explain  why  a  sale  of  munitions 
of  war  in  a  neutral  country,  by  individuals,  to  a  belligerent  should 
be  free  from  any  violation  of  neutral  duties,  while  the  sale  of  a  ship 
should  not  be  so.  Indeed,  it  has  been  held  by  the  Supreme  Court 
of  the  United  States  that  an  armed  ship  may  be  sent  abroad  to 
seek  a  market  like  any  other  commodity,  and,  when  abroad,  sold 
to  a  belligerent.  The  simplest  rule  for  obviating  all  difficulties 
between  neutrals  and  belligerents  would  undoubtedly  be  to  impose 
on  the  neutral  government  the  obligation  of  preventing  contraband 
from  ever  being  shipped  by  its  own  citizens ;  and  this  would  have 
the  further  advantage  of  abolishing  the  right  of  search,  which,  since 
the  general  adoption  of  the  rule  that  neutral  goods  are  safe  in 
enemy's  ships  and  enemy's  goods  in  neutral  vessels,  only  exists  for 
contraband.  This,  it  may  be  added,  is  the  course  advocated  by 
many  eminent  publicists,  and  so  far  as  vessels  are  concerned  it 
would  seem  to  have  been  adopted  in  the  recent  British  Neutrality 
act. 

By  the  law  of  nations,  as  now  understood,  though  munitions  of 
war  may  be  sold  in  a  neutral  country  to  be  used  against  a  State  at 
peace  with  it,  yet  it  is  held,  and  all  the  late  controversy  turns  on 
considerations  connected  therewith,  that  a  ship  is  not  in  the  same 


20 

category,  and  that  though,  as  we  have  said,  she  may  be  sent  abroad 
to  seek  a  purchaser,  she  cannot  be  sold  at  home  to  a  belligerent. 
I  have  not  been  able  to  see  any  other  ground  for  the  distinction 
than  that  which  connects  itself  with  the  well  recognized  rule  which 
forbids,  in  all  cases,  a  neutral  to  permit  his  territory  to  be  used  as 
the  base  of  hostile  operations.  There  is  here  no  difference  as  to 
the  breach  of  neutrality,  whether  the  capture  be  made  in  neutral 
waters  by  a  vessel  wherever  fitted  out,  or  on  the  high  seas,  when 
the  cruiser  has  been  built  or  fitted  out  in  a  neutral  port.  It  is  the 
power  of  carrying  on  war,  when  leaving  the  neutral  port,  which 
essentially  distinguishes  the  sale  of  a  ship  in  the  neutral  country 
from  the  sale  of  munitions  of  war,  which,  by  themselves  would  be 
of  no  avail.  It  is  unneccessary  to  say  that  a  mere  technical  evasion 
— as  by  sailing  unarmed  and  taking  the  guns  on  board 'outside  of 
the  port — in  nowise  alters  the  position  of  the  parties,  according  to 
the  law  of  nations,  whatever  its  effect  may  be  in  construing  a 
municipal  statute. 

1  would  not,  however,  be  understood  to  contend  that  it  would 
be  the  duty  or  even  the  right  of  a  neutral  to  pursue  the  offending 
belligerent  beyond  his  own  territorial  limits  for  a  violation  of 
neutrality  within  his  jurisdiction,  and  our  own  courts  have  held 
that  though  restitution  would  be  made  of  the  property  unlawfully 
taken,  when  brought  within  our  power,  we  have  not  the  right  to 
award  damages  against  the  captor,  or  to  proceed  against  a  vessel 
itself,  whether  a  public  ship  or  a  privateer,  having  the  sovereign's 
commission,  which  had  offended  against  our  neutrality.  The 
course  of  England,  in  following  the  Portugese  expedition,  in  1829, 
to  Terceira,  was  condemned,  in  his  place  in  Parliament,  by  that 
eminent  expounder  of  international  law,  Sir  James  Mackintosh. 

Viewed  in  the  light  in  which  we  have  been  considering  it,  there 
is  no  difference  in  principle  betAvcen  our  duty  to  England,  so 
promptly  recognized  at  the  commencement  of  the  French  revolu- 
tion, and  the  obligations  of  that  country  to  us  during  the  late 
civil  war,  though  the  circumstances  were  different.  I  particularly 
refer  to  what  occurred  in  the  time  of  Washington,  because  the 
United  States  then  had  no  neutrality  laws, — the  first  act  having 
been  passed  in  1794, — and  whatever  was  done  was  based  on  the 
law  of  nations.  The  United  States  were  then  neutral,  but  they 
were  bound  by  the  treaty  of  1778  with  France,  made  long  before 
the  existing  war,  and  which  has  been  alluded  to  as  giving  to  her  the 


21 

right,  exclusive  of  her  enemies,  of  bringing  her  prizes  into  the  ports 
of  the  United  States.  The  grievance  was  not  that  she  sent  her 
prizes  there, — a  right  which  England  did  not  dispute, — but  that 
she  used  our  ports  for  the  purpose  of  fitting  out  privateers  to 
cruize  against  English  commerce  and  that  captures  were  made 
within  our  limits. 

No  prizes  made  by  confederate  vessels,  whether  fitted  out  in 
English  ports  or  not,  were  brought  within  British  jurisdiction  and 
consequently  no  restitution  in  specie,  as  in  our  case,  could  be 
made.  They  were  kept  out  by  a  general  prohibition,  to  which 
reference  has  been  made  as  entitling  England  to  some  regard  on 
our  part;  but  the  depredations  on  our  commerce,  by  cruisers  fitted 
out  or  built  in  England,  in  the  burning  of  our  vessels  at  sea,  were 
not  less  disastrous  than  if  an  English  asylum  had  been  open 
to  them.  Though  the  French  prizes  were  brought  into  our  ports, 
and  were  therefore  in  a  certain  sense,  within  our  power,  it  was 
not,  beside  the  danger  that  we  incurred  from  France,  an  easy  task 
for  our  government  to  comply  with  the  demands  for  restitution. 
Nice  questions  were  raised  as  to  the  respective  powers  of  the  ex- 
ecutive and  judiciary  in  such  cases.  General  Washington  did  not, 
however,  rest  his  course  as  to  a  foreign  nation,  on  any  technical 
ground  not  defensible  under  the  law  of  nations;  but  it  was  only 
through  the  exercise,  by  our  admiralty  courts,  of  a  power,  for 
which  Si:*  Travers  Twiss  says  no  English  precedent  can  be  found 
since  the  time  of  Sir  Lionel  Jenkins,  that  the  restitution  was 
effected.  Such  an  exercise  of  power  by  our  courts  was  confessedly 
an  exception  to  the  general  rule,  that  the  trial  of  captures  on  the 
high  seas  belongs  exclusively  to  the  courts  of  the  nation  to  which 
the  captors  belong.  Our  courts,  however,  held,  and  continue  to 
hold,  that  if  the  capture  be  made  within  the  territorial  limits  of  a 
neutral  country  into  which  the  prize  is  brought,  or  by  a  privateer 
which  has  boon  illegally  equipped  in  such  neutral  country,  the 
prize  courts  of  that  country  not  only  possess  the  power,  but  it  is 
their  duty  to  restore  the  property  to  the  owner.  This  was  done 
to  the  private  claimant,  though  the  propriety  of  that  course,  with- 
out the  intervention  of  his  government,  has  been  questioned  by 
Judge  Story.  Not  only  was  restitution  made  where  the  prizes 
were  within  our  territory,  whenever  that  could  be  done  with- 
out involving  us  in  a  conflict  with  France,  but  where  it  could 
not,  compensation  in  specified  cases  was  made  by  us  under  the 
3 


22 

treaty  of  1794 ;  a  fact  which  will  afford  to  the  British  High  Com- 
missioners a  precedent,  if  their  course  should  be  questioned  in 
their  own  country. 

The  correspondence  between  the  two  governments  after  the 
Alabama  escaped  in  1862,  interspersed  with  complaints  about  pre- 
mature recognition,  was  mainly  taken  up  with  accounts  of  Mr. 
Adams's  efforts  to  induce  the  English  courts  to  carry  into  effect 
their  own  neutrality  laws,  while  we  were  met  by  being  reminded 
of  similar  reclamations  made  on  us  by  the  Spanish  and  Portuguese 
governments  during  the  revolutions  in  South  America. 

Contrary  to  the  course  of  the  United  States  in  confiding  the  ex- 
ecution of  her  neutrality  acts,  including  that  of  1818,  to  the  ad- 
miralty courts,  the  English  act  of  1819  gave  jurisdiction  to  the 
common  law  courts;  and  the  case  of  the  Alexandra,  which  was  for- 
mally decided  in  favor  of  the  defendant,  though  the  opinions  of  the 
judges  of  the  Court  of  Exchequer  were  divided  on  a  technical 
question  of  construction,  produced  an  irritation  in  the  minds  of 
the  American  people  which  neither  the  decision,  in  a  contrary 
sense,  of  a  Scotch  court,  nor  even  the  interposition  of  the  govern- 
ment in  the  purchase  of  the  Anglo-Chinese  squadron,  supposed  to 
be  intended  for  the  South,  had  any  effect  in  allaying.  In  our  di- 
plomatic correspondence,  if  it  be  permitted  here  to  make  any 
comment  on  it,  it  would  seem  to  be  a  matter  to  be  noticed  that  we 
allowed  ourselves  to  be  drawn  into  a  discussion  whether  the  En- 
glish laws  had  or  had  not  been  executed,  thus  apparently  with- 
drawing the  case  from  its  only  true  test,  the  law  of  nations. 

That  the  United  States  had  at  least  a  prima  facie  claim  for 
indemnity  is  admitted  by  the  preamble  of  the  first  article  of  the 
treaty,  expressing  the  regret  of  her  Majesty's  government  "for  the 
escape,  under  whatever  circumstances,  of  the  Alabama  and  other 
vessels  from  British  ports,  and  for  the  depredations  committed  by 
those  vessels." 

Nor  since  Earl  Russell,  during  whose  administration  of  the  De. 
partrnent  of  Foreign  Affairs  these  untoward  events  occurred,  has 
there  been  any  indisposition  to  submit  the  questions  arising  from 
the  Alabama  claims — as  svell  as  others  which  the  subjects  or  citi- 
zens of  the  one  country  had  against  the  government  of  the  other — 
to  international  adjudication. 

A  proposition  for  a  treaty  to  settle  general  claims  was  made  by 
Mr.  Seward  in  1862,  before  the  Alabama  matter  arose.  It  was 


23 

renewed  by  Lord  Russell  in  1865,  but  he  stated  that  in  his  pro- 
posal the  Alabama  and  other  similar  claims  were  not  included- 
In  March  1867,  however,  Lord  Stanley  submitted  a  proposition 
for  a  limited  reference  to  arbitration  in  the  so-called  Alabama 
claims,  and  adjudication,  by  means  of  a  niixed  commission,  of 
general  claims;  a  proposition  which  seems  to  have  been  the  prec- 
edent for  that  which  led  to  the  appointment  of  the  High  Commis- 
sion. That  the  matter  then  failed  arose  from  the  persistency  of 
Mr.  Seward  in  maintaining,  despite  the  remonstrance  of  Mr. 
Adams,  that  the  national  injuries  sustained  by  the  United  States, 
from  what  was  declared  to  be  the  premature  recognition  of  the 
confederate  belligerency,  should  be  embraced  in  the  arrangement. 

Lord  Stanley  had,  in  November  preceeding,  said  that  her  Ma- 
jesty's government  could  not  consent  to  refer  to  a  foreign  power 
to  determine  whether  the  policy  of  recognizing  the  confederate 
belligerency  was  or  was  not  suitable  to  the  circumstances  of  the 
time  when  that  recognition  was  made.  Mr.  Seward,  in  answer* 
said  that  the  United  States  government  would  not  object  to  arbi- 
tration, but  would  expect  to  refer  the  controversy  just  as  it  is 
found  in  the  correspondence  which  had  taken  place  between  the 
two  governments,  with  such  further  evidence  and  arguments  as 
either  party  might  desire,  without  imposing  restrictions  upon  the 
umpire.  To  such  an  unlimited  reference  Lord  Stanley  objected 
for  this,  among  other  reasons,  that  it  would  compel  the  submission 
of  the  very  question  which  he  had  already  said  he  could  not  agree 
to  submit. 

Further  negotiations  on  this  subject  were  postponed  to  the  nat- 
uralization and  San  Juan  conventions.  Mr.  Johnson,  in  goin^  to 

"  O  O 

London  in  1868,  was  instructed  that  those  questions  must  be  ar- 
ranged before  any  discussion  on  the  claims  convention  could  be 
entertained.  Whatever  excitement  might  have  heretofore  prevail- 
ed as  to  the  rights  of  naturalized  citizens,  the  present  importance, 
in  the  view  of  the  American  people,  of  the  former  of  these  mat- 
ters would  seem  to  have  been  exaggerated.  The  law  officers  of 
the  crown  declared  that  no  naturalization  convention  could  be 
made  without  affecting  essentially  the  operations  of  the  laws  of 
descent  and  of  many  other  portions  of  the  common  law,  and  they 
suggested  that  similar  changes  in  the  law  of  the  American  States, 
which  retained  the  common  law,  would  be  necessary.  A  conven- 
tion which  had  been  prece  led  by  a  protocol,  in  order  to  await  the 


24 

action  of  Parliment,  was  concluded,  March  13,  1870,  a  statute 
making  the  required  changes  in  the  law  having  passed  the  preceed- 
ing  day;  yet  it  would  appear  from  the  debates  in  the  New  York 
Senate,  that,  when  an  act  was  introduced  at  the  late  session  to 
make  the  laws  of  that  State  conform  to  the  treaty  by  adopting 
an  act  founded  on  the  English  statute,  the  Senator,  whose  argu- 
ment had  a  controlling  influence,  was  ignorant  alike  of  the  con- 
vention, and  of  the  Expatriation  act  ot  Congress,  which  had 
induced  the  Federal  government  to  conclude  it.* 

The  requisite  protocols  having  been  signed  on  both  the  other 
subjects,  Mr.  Johnson  attempted  an  arrangement  of  a  Claims  con- 
vention, in  a  mode  by  which  to  avoid  any  mention  of  the  appar- 
ently irreconcilable  views  of  the  two  countries.  This,  Mr.  Johnson 
tells  us,  was  accomplished  as  well  in  the  treaty  of  November  10, 
1868,  which  was  rejected  by  the  President  without  being  submit- 
ted to  the  Senate,  as  in  that  of  the  14th  of  January,  1869,  by  the 
general  terms  of  the  reference  of  all  claims  arising  since  1853  of  the 
citizens  of  the  one  State  on  the  government  of  the  other,  whether  or 
not  arising  out  of  the  civil  war.  A  clause  was  inserted  at  Mr.  Se- 
ward's  special  suggestion,  in  the  second  article  of  the  treaty  of 
January  14,  1869,  requiring  that  "  the  official  correspondence 
which  has  taken  place  between  the  two  governments,  respecting 
any  claims,  shall  be  laid  before  the  commission."  This,  it  was 
suppossd,  would  secure  the  notice  of  the  subject  of  rebel  belliger- 
ency by  the  soverign,  whose  appointment  for  the  purpose  of  the 
Alabama  claims,  so-called,  (which  though  particularly  named,  were 
included  in  a  general  reference,)  was  contemplated,  an  ordinary 
umpire,  chosen  by  the  parties  or  by  lot,  serving  in  the  other  cases. 

But  though  the  alleged  heinous  offence  of  Great  Britain,  in  re- 
gard to  the  recognition  of  the  belligerent  rights,  was  condoned  by 


*The  conflict  of  the  naturalization  treaties  of  the  United  States  with  the  S^ate  laws,  es- 
pecially with  those  of  the  State  of  New  Y.»rk,  relative  to  the  transmission  of  re  il  est  tte  to 
aliens,  was  the  subject  of  a  treatise,  by  the  present  writer,  in  1871.  The  eft0  >rt  was  so  far 
successful  as  to  lead,  on  the  recommendation  of  the  Governor  Hoffmani  to  the  rem  >val  of 
disabilities  from  American  women  married  abroad.  An  act  was  passed,  March  20,  1871,  by 
the  Legislature  of  New  York,  to  authorize  the  descent  of  real  estate  to  female  citizens  of 
the  United  States  and  their  descendants,  notwithstanding  their  marriage  with  aliens. 
Further  legislation,  however,  is  necessary,  to  make  the  laws  of  that  State,  especially  as  to 
the  descent  of  real  estate,  harm  mize  with  the  treaties  with  England  and  othei  powers.  It 
would  seem  that  even  the  English  naturalization  act.  passed  in  anticipation  of  the  treaty 
with  the  United  States,  has  not  met  all  the  contingencies  for  which  it  was  intended  to 
provide.— See  Solicitors'  Journal,  Vol.  XVI,  p.;727. 


25 

the  author  of  the  complaint,  it  was  not  so  by  the  very  accomplish- 
ed scholar  then  at  the  head  of  the  Committee  on  Foreign  Affairs, 
and  to  whom  it  is  impossible  to  impute  ignorance,  either  of  politi- 
cal history  or  of  the  rules  of  international  law.  As  Mr.  Sunmer's 
speech,  presenting  a  most  formidable  bill  of  indictment  against 
Great  Britain,  at  the  head  ot  which  he  places  the  Queen's  procla- 
mation of  neutrality,  and  from  the  consequence  of  which  he  de- 
duces claims,  not  only  for  the  destruction  of  property  by  the 
confederate  cruisers  but  for  untold  millions  for  the  expenses  of  the 
protracted  war,  was  published  with  the  consent  of  the  Senate,  we 
are  bound  to  ascribe  to  his  reasoning  the  nearly  unanimous  rejec- 
tion of  Mr.  Johnson's  treaty.  Mr.  Motley,  moreover,  in  his  earlier 
intercourse  with  Lord  Clarendon,  stated,  with  respect  to  the 
treaty:  "The  time  at  which  it  was  signed  was  thought  most  in- 
opportune, as  the  late  President  and  his  government  were  virtual- 
ly out  of  office  and  their  successors  could  not  be  consulted  on  this 
grave  question.  The  convention  was  further  objected  to  because 
it  embraced  only  the  claims  of  individuals  and  had  no  reference 
to  those  of  the  two  governments  on  each  other;  and  lastly,  that 
it  settled  no  question  and  laid  down  no  principle." 

Nor  did  the  prospects  of  adjustment  seem  to  have  been  much 
improved  by  the  inauguration  of  the  new  administration.  While 
not  basing  our  rights  to  redress  for  the  Alabama  claims  solely  on 
the  action  of  the  British  government  at  the  commencement  of  the 
secession,  the  American  government  continued  to  consider  the 
recognition  as  an  unfriendly  proceeding  and  leading  to  other  con- 
sequences for  which  claims  for  indemnity  were  due.  The  course 
of  the  American  Minister  at  London  in  exaggerating  his  instruc- 
tions on  this  point,  and  in  assuming,  as  it  were,  the  prerogative  of 
making  war  in  his  menaces  to  the  British  government,  had  induced 
a  state  of  things  which  seemed  to  render  any  further  attempt  at 
negotiations  impracticable ;  but  the  reasons  assigned  for  his  recall, 
and  in  which  his  course  was  fully  disavowed,  having  satisfied  the 
government  of  Great  Britain  that  a  change  of  policy  had  occur- 
red at  Washington,  a  measure,  in  appointing  a  board  of  commis- 
sioners, eminent  for  their  rank  and  public  station,  to  meet 
plenipotentiaries  on  the  part  of  the  United  States,  was  inaugurated, 
thereby  showing  the  importance  attached  by  England  to  the 
maintenance  of  friendly  relations  with  the  United  States.  It  has 
resulted  in  a  treaty  now  before  the  Senate  for  ratification,  which, 


26 

instead  of  being  confined  to  a  single  point,  sets  at  rest  all  those 
questions  which  have  so  repeatedly  given  rise  to  angry  discussions 
between  the  two  powers. 

The  treaty  proposes,  as  in  the  original  suggestion  of  Lord  Stan- 
ley in  1867,  a  special  reference  of  the  Alabama  claims.  Five  arbi- 
trators are  to  be  named,  one  each  by  the  United  States,  Great 
Britain,  the  King  of  Italy,  the  President  of  the  Swiss  Confedera- 
tion, and  the  Emperor  ot  Brazil,  or  in  case  of  the  omission  of  either 
of  the  three  last  named  sovereigns,  by  the  King  of  Sweden  and 
Norway.  They  are  to  determine  as  to  each  vessel  separately 
whether  Great  Britain  had  filled  to  fulfil  the  duties  set  forth  by 
the  prescribed  rules  laid  down  in  the  treaty,  and  if  so  they  may 
award  a  sum  in  gross  to  be  distributed  by  the  United  States,  or 
they  may  agree  that  a  board  of  assessors  to  be  appointed  by  the 
President,  by  Her  Britanic  Majesty,  and  by  the  King  of  Italy,  shall 
ascertain  and  determine  what  claims  are  valid,  and  what  amount 
or  amounts  shall  be  paid  by  Great  Britain  to  the  United  States, 
on  account  of  the  liability  arising  from  such  failure,  as  to  each 
vessel,  according  to  the  extent  of  such  liability  as  decided  by  the 
arbitrators.  What  ought  to  commend  this  portion  of  the  treaty  to 
us  is  that  the  rules  which  are  to  be  the  basis  of  the  adjudication 
are  essentially  the  same  as  were  adopted  by  our  govrnment  in 
the  Presidency  of  Washington,  and  when  Jefferson  was  Secretary 
of  State.  Their  importance  will  justify  inserting  them  entire. 

"  A  neutral  government  is  bound,"  it  is  said,  "  First,  to  use  due 
diligence  to  prevent  the  fitting  out,  arming,  or  equipping,  within 
its  jurisdiction,  of  any  vessel  which  it  has  reasonable  ground  to 
believe  is  intended  to  cruise  or  carry  on  war  against  a  power  with 
which  it  is  at  peace  ;  and  also  to  use  like  diligence  to  prevent  the 
departure  from  its  jurisdiction  of  any  vessel  intended  to  cruise  or 
carry  on  war  as  above,  such  vet^o1  having  been  specially  adapted, 
in  w'lole  or  in  part,  within  such  jurisdiction  to  warlike  use. 

"  Secondly,  not  to  permit  or  suffer  either  belligerent  to  make  use 
of  its  ports  or  waters  as  the  base  of  naval  operations  against  the 
other,  or  for  the  purpose  of  the  renewal  or  augmentation  of  mili- 
t  iry  supplies  or  arms  or  the  recruitment  of  men.* 

*  A  suggestion  is  understood  to  have  been  made  in  the  Senate,  anil  it  has  also  been  made 
in  England,  that  the  last  clause  of  the  second  rule  might  extend  to  a  general  prohibition  of 
the  supplyin?  of  munitions  of  war  by  a  neutral  to  a  bellisr^re'it.  For  this,  we  think  there  is 
no  reason.  The  Context,  as  well  as  the  declared  object  of  the  rules,  shows  that  the  clause  can 
only  refer  to  military  supplies,  arms  or  men  furnished  for  the  naval  operations,  ot  which 
the  neutral  ports  or  waters  are  the  base;  in  other  words,  the  scope  of  that  clause  is  con- 
trolled by  the  preceding  one. 


27 

"  Thirdly,  to  exercise  due  diligence  in  its  own  waters,  and  at*  to 
all  persons  within  its  jurisdiction,  to  prevent  any  violation  of  the 
foregoing  obligations  and  duties." 

Though  it  is  declared  in  the  treaty  that  the  British  government 
cannot  admit  that  the  rules- which  are  thus  established  were  in 
force  at  the  time  when  the  claims,  to  which  it  is  agreed  that  they 
should  apply,  arose,  yet  they  are  not  only  to  be  recognized  as 
hereafter  binding  between  the  two  nations,  but  their  influence  is 
pledged  to  have  them  acknowledged  by  all  the  other  States. 

The  sanction  of  the  English  government  has  been,  indeed,  given 
to  measures  even  more  stringent.  So  far  back  as  January  1867, 
a  commission  was  appointed  consisting  of  some  of  the  most  emi- 
nent English  jurists,  including  PhiJliinore,  Twiss,  and  Vernon 
Harcourt,  all  high  authorities  in  international  law,  and  to  which 
Mr.  Abbot,  (now  Lord  Tenterden)  was  attached  in  the  capacity 
that  he  at  present  holds  to  the  High  Commission  at  Washington. 
The  result  of  their  labors  was  embodied  in  the  act  of  9th  of 
August  1870,  the  passage  of  which  was  hastened  by  the  Franco- 
Prussian  war.  This  act  prohibits  the  building,  or  causing  to  be  built, 
by  any  person  within  Her  Majesty's  dominions  any  ship  with  intent 
or  knowledge  of  its  being  employe  1  in  the  military  or  naval  ser- 
vice of  any  foreign  State,  at  war  with  any  friendly  State;  issuing 
or  delivering  any  commission  for  any  such  ship;  equipping  any 
such  ship,  or  dispatching  or  causing  any  such  ship  to  be  dispatched 
for  such  purpose.  It  is  deserving  of  notice  that  Mr.  Vernon 
Harcourt  dissented  to  that  portion  of  the  report  of  the  commis- 
sioners that  applied  to  the  prohibition  of  ship  building.  Jurisdiction 
in  cases  under  the  act,  is  given  to  the  Court  of  Admirality, 
which  is  not  the  least  important  amendment  of  Uie  law.* 

The  proposed  reference,  in  18(52,  by  Mr.  Seward,  to  a  mixed 
commission  reached  all  claims  of  the  citizens  or  subjects  of  the  one 
country  on  ihe  government  of  the  other  since  1853,  and  such 
also  was  the  provision  of  the  conventions  negotiated  by  Mr.  John- 
son. It  does  not  appear  why  the  authority  of  the  commission  for 
the  claims,  other  than  the  Alabama  claims,  is  now  less  comprehen- 
sive, though  its  practical  effect  is  to  preclude  any  claims  for  the 


*Sir  Ro'  ert  Phillimore,  in  the  second  edition  ot  his  Commentaries,  recently  published, 
in  noticing  two  capes  decided  by  him,  under  the  foreign  enlistment  act  ot  1870,  cites  the 
words  of  our  text  approving  of  the  transfer  of  jurisdiction  to  the  Court  of  Admiralty, 


28 

Fenian  raids  into  Canada,  which  were  presented  by  the  British 
Commissioners,  but  withdrawn.  They  did  not  occur  till  1866. 
Sir  Edward  Thornton,  in  his  note  to  Mr.  Fish,  of  February  1, 1871, 
only  refers  to  claims  arising  out  of  acts  committed  during  the  civil 
war.  By  the  terms  of  the  Convention,  it  applies  to  claims  arising 
out  of  acts  committed  "  against  persons  and  property"  during  the 
period  between  the  13th  of  April,  1861,  and  the  9th  of  April,  1865. 
These  claims  are  referred  to  a  commission  of  three  members,  one 
to  be  appointed  by  the  Queen,  one  by  the  President,  and  the  third 
by  the  two  governments  conjointly,  or  if  they  cannot  agree  within 
the  prescribed  time,  by  the  representative  of  the  King  of  Spain,  at 
Washington. 

It  has  been  objected  to  this  commission  that  claims  might  be 
preferred  for  slaves  liberated  at  the  south,  and  for  injuries  sustained 
by  Englishmen,  domiciled  or  otherwise  there,  in  consequence  of 
the  ravages  of  the  war,  and  in  cases  in  which  American  citizens 
could  have  no  claims.  Both  of  these  objections  are,  however,  un- 
tenable, as  dealing  in  slaves,  or  even  owning  them,  has  long  been 
made,  on  the  part  of  an  English  subject,  no  matter  where  he  may 
be  resident,  a  felony ;  and  since  Air.  Marcy's  note  of  February,. 
1857,  to  M.  de  Sartiges,  on  account  of  the  destruction  of  property 
at  the  bombardment  of  Greytown,  it  is  no  longer  a  question  but 
that  foreigners  must  take  the  same  risk  as  to  their  property,  in  a 
country  exposed  to  the  hazards  of  war,  as  the  inhabitants  do.  This 
note  was  not  only  deemed  conclusive  by  France,  whose  claims  were 
withdrawn,  but  was  referred  to  in  the  English  Parliament  by  Lord 
Palinerston,  as  being  unanswerable.  (Lawrence's  Wheaton,  2d 
Ed.,  174).  I  have  cited  in  my  Commentaire,\om.  Ill,  p  128,  Irom  the 
Annuaire  des  JDeux  Mondes  and  Annuaire  de  Lesur,  the  cases, 
occuring  in  1849-50  of  the  reclamations  of  England  at  Naples  and 
Florence  on  account  of  losses  sustained  by  her  subjects  during  the 
civil  commotions  in  Italy,  and  in  which  Austria  and  Russia  inter- 
vened on  behalf  of  those  States.  The  answers  of  the  English  gov- 
ernment to  their  subjects  in  France  during  the  Franco-Prussian 
war,  eschewed  all  intervention  for  losses  sustained  by  them  ;  and 
the  views  there  expressed  would  be  applicable  to  any  similar  pre- 
tensions of  Englishmen  for  property  taken  or  destroyed  in  our 
civil  war,  as  the  result  of  hostilities.  So  far  as  regards  maritime 
prizes,  it  is  a  well  recognized  principle,  that  no  claim  can  be  made 
on  the  government  of  the  captor,  till  all  the  remedies  provided 


29 

through  the  Prize  Courts  have  been  exhausted,  and  then  only  in 
case  of  a  seizure  contrary  to  the  law  of  nations. 

With  respect  to  the  fisheries.  As  in  1818,  liberty  was  substituted 
for  right,  a  word  for  which  John  Adams  so  earnestly  contended 
at  the  treaty  of  1783,  and  the  perpetual  character  of  which  right 
was,  as  we  conceive,  so  clearly  established  by  John  Quincy  Adams, 
there  is  not  now,  nor  was  there  when  the  reciprocity  treaty  was 
negotiated  by  Lord  Elgin  and  Secretary  Marcy  in  1854,  any  longer 
a  question  of  principle  involved,  but  a  mere  matter  of  bargain,  the 
details  of  which  it  is  not  necessary  to  examine  here.  This  last 
remark  is  applicable  to  other  portions  of  the  treaty,  as  those  re- 
specting the  transit  of  goods  and  other  facilities  of  trade.* 

The  articles,  as  to  the  fisheries,  as  well  as  the  one  respecting  the  re- 
ciprocal transit  of  goods  between  the  United  States  and  the  British 
North  American  possessions,  are  not  to  go  into  effect  till  the  neces- 
sary laws  shall  be  passed  by  the  Imperial  Parliament,  the  Parlia- 
ment of  Canada,  and  the  Legislature  of  Prince  Edward  Island  on 
the  one  hand,  and  by  the  Congress  of  the  United  States  on  the 
other.  These  articles  are  to  remain  in  force  for  ten  years,  and 
further,  until  the  expiration  of  two  years,  (which  is  substituted  for 
twelve  months  in  the  former  treaty,)  after  either  party  has  given 
notice  to  terminate  the  same.  There  is  no  reference  in  the  treaty 
to  the  fisheries  of  the  Pacific  coast  nor  to  the  fisheries  of  the 
Great  Lakes. 

The  application  of  the  articles  as  to  the  fisheries  is  made  contin- 
gent with  respect  to  Newfoundland,  upon  the  action  of  the  Impe- 
rial Parliament,  the  Legislature  of  Newfoundland,  and  the  Con- 
gress of  the  United  States.  It  will  be  recollected  that  a  conven- 
tion made  between  France  and  England,  in  1857,  on  the  subject  of 


*It  had  been  contended  by  American  publicists,  though  the  point  does  not  seem  to  have 
been  discussed  before  the  Commissioners  that  the  Convention  of  1818  was  abrogated  by  the 
treaty  of  1854  and  that  when  that  treaty  was  terminated  in  1866,  the  treaty  ot  1818  was 
not  revived,  but  the  treaty  of  1783  was,  the  latter  being  a  treaty  of  partition  it  was  not 
affected,  it  was  claimed,  even  by  the  war  of  1812. 

The  provisions  as  to  the  extent  of  the  fisheries  are  the  game  in  the  treaty  of  1871  as  in 
that  of  1854.  Instead  of  the  reciprocity  as  to  the  numerous  articles  enumerated  in  the  treaty 
of  1854,  the  present  treaty  confines  the  right  of  admission,  duty  free,  in  each  country  re- 
spectively, to  fish  oil  and  fish.  It  moreover  provides  for  the  appointment  of  commissioners 
to  determine,  having  regard  to  the  privileges  accorded  by  the  United  States  to  the  subject 
of  Her  Britanic  Majesty,  the  amount  of  any  compensation,  which,  in  their  opinion  ought 
to  bea  pid  by  the  United  States  to  Great  Britain,  in  return  for  the  privileges  accorded  to 
the  citizeusof  the  United  States. 

4 


30 

the  fisheries,  was  rendered  of  no  effect  on  account  of  the  refusal  of 
the  colony  of  Newfoundland  to  give  its  assent,  but  the  action  of 
that  colony  will  not,  on  the  present  occasion,  affect  the  rest  of  the 
treaty. 

The  northwestern  boundary  (as  well  as  the  northeastern,  which 
was  in  conformity  to  a  convention  then  made,  referred  to  the  King 
of  the  Netherlands)  and  the  navigation  of  the  St.  Lawrence  are 
old  acquaintances,  having  been  included  in  the  negotiations  of 
1826 — 7,  originally  confided  to  Mr.  Rufus  King  and  Mr.  Gallatin, 
but  which,  owing  to  the  illness  of  Mr.  King,  devolved  exclusively 
on  the  latter.  The  rights  of  the  United  States  in  all  these  cases 
were  made  the  subjects  of  elaborate  memoirs,  with  the  preparation 
of  which,  as  the  secretary  of  the  mission,  I  became  familiar,  while 
many  matters  connected  with  these  discussions  were  confided  to 
me  on  the  departure  of  Mr.  Gallatin.  At  that  time  nothing  fur- 
ther was  done  as  to  the  boundaries  on  the  northwest  coast  than  to 
continue  indefinitely  the  provision  for  joint  occupancy,  stipulated 
for  in  the  treaty  of  1818.  Either  party  was  to  be  at  liberty  to 
abrogate  the  convention  on  a  notice  of  twelve  months  to  the 
other  party. 

A  notice  was  actually  given  by  the  United  States,  in  pursu- 
ance of  a  resolution  of  Congress,  passed  April  27th,  18-46.  The 
convention  of  June  15th  following,  establishing  the  boundary  line 
between  the  United  States  and  the  British  possessions  west  of  the 
iRocky  mountains,  only  left  to  be  determined  a  question,  which 
the  convention  itself  created,  as  to  the  channel  intended  to  be 
indicated,  separating  Vancouver's  Island  from  the  continent.  By 
the  new  treaty  it  is  left  to  the  Emperor  of  Germany  to  decide  which 
of  the  channels  claimed  is  most  in  accordance  with  the  treaty  of 
1846. 

At  the  time  of  the  negotiations  of  1826 — 7,  to  which  I  have  re- 
ferred, the  British  plenipotentiaries  would  entertain  no  proposition 
founded  on  the  right  of  the  United  States  to  navigate  the  River 
St.  Lawrence  to  the  sea.  Nor  was  it  till  the  treaty  of  1854,  that 
any  conventional  arrangement  was  made  on  that  subject.  By  that 
convention,  the  citizens  and  inhabitants  of  the  United  States  were 
to  have  the  right  to  navigate  the  River  St.  Lawrence  and  the 
canals  in  Canada  used  lor  communicating  between  the  great  lakes 
:and  the  Atlantic  Ocean  as  freely  as  the  subjects  of  her  Britanic 
Majesty,  subject  only  to  the  same  rates,  and  British  sabjects  were 


31 

to  have  the  right  of  navigating  freely  Lake  Michigan  so  long  as 
the  privilege  of  navigating  the  River  St.  Lawrence  should  con- 
tinue. The  British  Government  had  reserved  the  right  of  sus- 
pending the  privilege,  on  their  part,  on  giving  due  notice  to  the 
United  States,  in  which  case,  the  latter  might  suspend,  as  affected 
Canada,  the  free  trade  reciprocity  article.  By  the  present  treaty, 
the  navigation  of  the  River  St.  Lawrence,  ascending  and  descend- 
ing, from  the  45th  parallel  of  north  latitude,  where  it  ceases  to  be 
a  boundary  between  the  two  countries,  from,  to,  and  into  the  sea, 
shall  remain  forever  free  and  open  for  commerce  to  the  citizens  of 
the  United  States,  subject  to  any  laws  and  regulations  of  Great 
Britain  or  Canada  not  inconsistent  with  the  privilege  of  free  naviga- 
tion. The  like  privilege  is  accorded  to  the  subjects  of  Great  Brit- 
ain for  the  navigation  of  the  rivers  Yukon,  Porcupine  and  Stikine; 
but  the  navigation  of  Lake  Michigan,  subject  in  like  manner  to  the 
laws  and  regulations  of  the  United  States,  is  only  conceded  to  the^ 
subjects  of  Great  Britain  for  the  same  period  as  is  provided  for 
the  fishery  articles.  There  is  a  provision  also  as  to  the  use  of  the 
canals.  The  British  government  ngree  to  urge  on  the  government 
of  Canada  to  secure  to  the  United  States  the  use  of  certain  canals 
on  an  equality  with  the  inhabitants  of  the  Dominion,  and  the 
United  States  a^ree  that  British  subjects  shall  have  the  like  use 
of  the  St.  Clair  Flats  Canal,  and  the  President  is  to  urge  on  the 
State  governments  to  secure  to  them  the  State  canals  connected 
with  the  navigation  of  the  lakes  or  rivers  traversed  by  or  conti- 
guous to  the  boundary  between  the  possessions  of  the  two  powers. 

W.  B.  LAWRENCE. 


33 


To  the  Editor  of  the  Providence  Journal : 

The  kind  notice  which  you  took  of  my  letter  to  the  "World  on 
the  recent  treaty  with  England,  in  your  paper  of  Monday,  induces 
me  to  suppose  that  the  inclosed  memorandum  may  not  be  without 
interest  to  your  readers.  It  establishes  from  the  notes  of  Mr.  Jef- 
ferson to  the  English  and  French  ministers,  the  accordance,  before 
any  neutrality  act  was  passed  by  Congress,  of  the  principles  of  in- 
ternational law,  as  maintained  in  General  Washington's  admistra- 
tion,  with  the  rules  laid  down  in  the  late  treaty  for  the  adjudica- 
tion of  the  Alabama  claims. 

W.  B.  LAWRENCE. 

OCORK  POINT,  Newport,  June  1,  1871. 


Mr.  Jefferson,  Secretary  of  State,  writing  to  Mr.  Hammond, 
British  Minister,  under  date  of  May  15,  1793,  after  stating  that  an 
alleged  condemnation  of  a  British  prize  by  the  French  Consul  at 
Charleston  was  a  legal  nullity,  and  can  make  no  part  in  the  title 
of  a  vessel,  though  it  was  an  act  of  disrespect  towards  the  United 
States,  asserts  that  the  purchase  of  arms  and  military  accoutre- 
ments by  an  agent  of  the  French  government,  in  th:s  country,  with 
an  intent  to  export  them  to  France,  is  permitted  by  the  law  of 


34 

nations.  "It  (the  law  of  nations)  is  satisfied  with  the  external 
penalty  pronounced  by  the  President's  proclamation, — that  of 
confiscation  of  such  portion  of  these  arms  as  shall  fall  into 
the  hands  of  any  of  the  belligerents  on  the  way  to  the  ports  of 
their  enemies.  To  this  penalty  our  citizens  are  warned  that  they 
will  be  abandoned. 

"  The  capture  of  the  British  ship  George,  by  the  French  frigate 
U Embuscade,  has,  on  inquiry,  been  found  to  have  taken  place  with- 
in the  Bay  of  Delaware  and  jurisdiction  of  the  United  States.  The 
government  is,  therefore  taking  measures  for  the  liberation  of  the 
crew  and  restitution  of  the  ship  and  cargo. 

"It  condemns,  in  the  highest  degree,  the  conduct  of  any  of  our 
citizens  who  may  personally  engage  in  committing  hostilities  at 
sea  agninst  any  of  the  nations,  parties  to  the  present  war,  and  will 
exert  all  the  means  with  which  the  laws  and  Constitution  have 
armed  them  to  discover  such  as  offend  herein,  and  bring  them  to 
condign  punishment. 

"The  practice  of  commissioning,  equipping  and  manning  vessels 
in  our  ports  to  cruise  on  any  of  the  belligerent  parties  is  equally 
and  entirely  disapproved  ;  and  the  government  will  take  effectual 
measures  to  prevent  a  repetition  of  it." 

In  a  note  from  Mr.  Jefferson  to  Mr.  Genet,  Minister  of  France, 
dated  August  7,  1793,  it  is  said  :  "  I  have  it  in  charge  to  inform 
you  that  the  President  considers  the  United  States  as  bound,  pur- 
suant to  positive  assurances  given  in  conformity  to  the  laws  of 
neutrality,  to  effectuate  the  restoration  of  or  to  make  compensation 
for  prizes,  which  shall  have  been  made  of  any  of  the  parties  at  war 
with  France,  subsequently  to  the  fifth  day  of  June  last,  by  priva- 
teers fitted  out  of  our  ports. 

"That  it  is  consequently  expected  that  you  will  cause  restitution 
to  be  made  of  all  prizes  taken  and  brought  into  our  ports  subse- 
quent to  the  above  mentioned  day,  by  such  privateers,  in  defect  of 
which,  the  President  considers  it  as  incumbent  upon  the  United 
States  to  indemnify  the  owners  of  those  prizes,  the  indemnification 
to  be  reimbursed  by  the  French  nation." 

In  a  note  to  Mr.  Hammond,  dated  September  5, 1793,  and  which 
was  subsequently  annexed  to  the  treaty  of  1794,  Mr.  Jefferson 
says  :  "  Having  for  paiticular  reasons  foreborne  to  use  all  the  meas- 
ures in  our  power  for  the  restitution  of  the  three  vessels  mentioned 
in  my  letter  of  August  7,  the  President  thought  it  incumbent  on 


35 

the  United  States  to  make  compensation  for  them  ;  and  though 
nothing  was  said  in  that  letter  of  other  vessels  taken  under  like 
circumstances,  and  brought  in  atter  the  date  of  that  letter,  the 
President  determined  that  all  the  means  in  our  power  should  be 
used  for  their  restitution.  If  these  tail  us,  as  we  should  not  be 
bound  by  our  treaties  to  make  compensation  to  the  other  powers, 
in  the  analogous  case,  he  did  not  mean  to  give  an  opinion  that  it 
ought  to  be  done  to  Great  Britain.  But  still,  if  any  cases  shall 
arise  subsequent  to  that  date,  the  circumstances  of  which  shall 
place  them  on  similar  grounds  with  those  before  it,  the  President 
would  think  compensation  equally  incumbent  on  the  United 
States."  [Jefferson's  Works,  vol.  HI.,  pp.  229,  265,  285.] 

By  Art.  VII,  treaty  of  19th  November,  1794,  (Jay's  treaty:) 
"It  is  agreed  that  in  all  such  cases  where  restitution  shall  not  have 
been  made  agreeably  to  the  tenor  of  the  letter  from  Mr.  Jefterson 
to  Mr.  Hammond,  dated  at  Philadelphia,  September  5,  1793,  a  copy 
of  which  is  annexed  to  this  treaty,  the  complaints  of  the  parties 
shall  be,  and  hereby  are,  referred  to  the  commissioners  to  be  ap- 
pointed by  virtue  of  this  article,  who  are  hereby  authorized  and 
required  to  proceed  in  like  manner  relative  to  these  as  to  the  other 
cases  comnitted  to  them."  [United  States  Statutes  at  Large, 
Vol.  VIII,  p.  1-21. 


INDIRECT     CLAIMS. 


OCHRE  POINT,  NEWPORT,  It.  I. ) 

April  20th,  1872.          j 

To  the  K.I  if  or  of  (/!'    Providence  Journal: 

Your  readers  may  possibly  recollect  a  letter  in  reference  to  the 
Treaty  of  Washington,  add lessed  to  the  World,  during  the  pen- 
dency of  the  discussion  of  the  subject  before  the  Senate,  and  which 
you  did  me  the  honor  to  transfer  to  the  JOUIIXAL.  In  that  article 
1  endeavored  to  give  a  summary  of  the  treaty,  as  I  understood  it, 
deiived  not.  merely  from  my  intercourse  at  the  time  with  the  com- 
missioners of  both  countries,  and  from  the  negotiations  which  had 

O 

preceded  it,  but  irom  an  attentive  perusal  of  the  treaty  itself.  In 
my  remarks  on  that  portion  of  it  which  related  to  the  Alabama 
claims,  so  called,  I  expressed  my  gratification  at  the  withdrawal  of 
all  pretensions  to  indemnity  for  injuries  growing  out  of  the  pre- 
cipitate recognition  of  belligerency,  pretensions  which  had  ever, 
during  Mr.  Seward's  administration  of  the  State  Department,  been 
an  obstacle  to  all  amicable  negotiation  with  Great  Britain,  though 
they  were  even  then  repudiated  in  stronger  language  than  I  had 
ever  employed,  in  the  wrrk  prepared,  at  the  Secretary's  suggestion^ 
to  supersede  Lairr* -nwfs  Wheaton.  It  is  to  be  remembered  in  this 
connection,  that  it  was  on  this  recognition  and  not  specifically  on 
account  of  the  violation  of  neutral  obligations  in  allowing  the  equip- 
ment of  confederate  cruisers  in  British  ports,  (which  was  only  re- 
garded as  one  of  the  consequences  of  the  admission,)  that  the  de- 
mand for  indefinite  reclamations  had  been  made  by  the  American 
government.  I  also  s  ated  that  such  was  the  ground  assumed  by 
Mr.  Motley,  and  which  induced  a  state  of  things  that  would  have 
rendered  any  further  attempt  at  negotiation  impracticable,  had  not 
the  recall  of  that  minister  satisfied  the  government  of  Great  Brit- 
ain that  a  change  of  policy  had  occurred  at  Washington. 


38 

In  my  understanding  of  the  treaty,  whatever  injuries  the  United 
States  had  sustained,  otherwise  than  by  the  direct  spoliation  of 
individual  property,  in  consequence  of  the  escape  of  the  Alabama 
and  other  vessels  from  British  ports,  was  condoned  by  the  express- 
ion of  the  regret  of  Her  Majesty's  government,  while  it  was 
deemed  a  great  concession  to  the  United  States  that  England 
should  allow  to  be  applied  to  the  adjudication  of  cases  that  had 
already  occurred,  principles  of  international  law,  which  she  had 
only  prospectively  adopted.  The  more  stringent  provisions  of  the 
new  British  neutrality  act,  and  the  submission  of  the  cases  coming 
under  it,  as  with  us,  to  a  court  of  admiralty,  were  alluded  to  as 
consequences  of  the  discussions  growing  out  of  American  recla- 
mations. Indeed,  the  eminent  German  publicist  Holtzendorf  con- 
siders the  adoption  of  the  rules  defining  the  obligations  of  neu- 
trality the  best  atonement  that  could  have  been  made  to  us  for 
national  injuries. 

My  sketch,  after  citing  the  part  of  the  treaty  which  requires 
the  arbitrators  to  determine  as  to  each  vessel  separately,  whether 
Great  Britain  had  failed  to  fulfill  the  duties  set  forth  by  the  pre- 
scribed rules  laid  down  in  the  treaty,  proceeds  to  say  :  "  What 
ought  to  commend  this  portion  of  the  treaty  to  us  is  that  the  rules 
which  are  to  be  the  basis  of  the  adjudication  are  essentially  the 
same  as  were  adopted  by  our  government  in  the  Presidency  of 
Washington,  and  when  Jefferson  was  Secretary  of  State." 

This  quotation  sufficiently  shows  that  while  the  treaty  was  under 
the  discussion  of  the  Senate,  no  indirect  damages  were,  in  my  judg- 
ment contemplated,  and  it  constitutes  a  sufficient  answer  to  the 
statement,  which,  to  the  surprise  of  my  friends,  both  at  home  and 
abroad,  has  appeared  in  several  of  the  public  journals  that  the 
"American  case,"  in  which  they  are  presented,  had  been  submitted 
to  my  examination  and  received  my  approval.  This  announce- 
ment occasioned  me  no  little  embarrassment,  as,  while  it  is  very 
certain  that  in  no  way  has  my  aid  in  any  matter,  relating  to 
the  treaty  or  otherwise  affecting  our  foreign  relations  been  asked 
by  the  present  administration,  the  "  case"  was  brought  to  my 
notice,  as  a  matter  of  personal  confidence,as  I  conceived,  and 
under  circumstances  which  imposed  secrecy,  by  the  gentleman  to 
whom  its  preparation  was  entrusted. 

-I  had  no  right  to  take  any  exception  to  the  fact,  that  my  friendly 
suggestions  on  the  points  now  in  question  were  not  adopted,  but 


39 

it  is  no  derogation  to  my  sentiments  of  personal  regard  for  the 
author  of  the  paper  or  to  the  most  kindly  relations  which  I  have 
ever  entertained  towards  nil  the  parties  who  are  responsible  for 
the  work,  that  I  am  not  willing  to  be  supposed  to  have  acquiesed 
in  propositions  which  are  at  variance  with  my  well  known  views 
of  public  law,  as  well  as  with  what  I  deem  to  be  the  true  construc- 
tion of  the  treaty. 

I  will,  in  this  connection,  add  that,  having  been  an  observer  of 
the  conciliatory  mode  in  which  the  negotiations  preceding  the 
treaty  had  been  conducted  at  Washington.  I  did  object,  as  con- 
trary to  the  understanding  of  all  parties,  to  those  criminations  for 
pnst  events  which  I  supposed  it  to  have  been  the  object  of  the 
treaty  to  terminate. 

.My  own  idea  would  have  been  to  have  adopted  the  same  course 
as,  I  afterwards  found,  was  followed  in  the  preparation  of  the 
^' English  case,r  and  to  have  presented  a  statement  confined  exclu- 
sively to  the  matters  properly  cognizable  before  the  Tribunal, 
applying  to  the  facts  of  each  case  the  rules  established  by  the  Treaty 
for  their  adjudication.  Moreover, I  should,  without  having  antici- 
pated the  recent  action  of  the  British  government,  have  deemed  it 
more  consistent  with  the  dignity  of  the  country,  as  well  as  more 
likely  to  eiVect  a  favorable  result  with  the  arbitrators,  not  to  have 
adduced  any  claims  which  I  did  not  believe  ought  to  be  admitted 
by  them ;  though  I  am  quite  aware  that  it  has  been  suppos- 
ed by  foreign  publicists  that  the  United  States  presented  the 
indirect  demands  rather  as  indeterminable  elements,  to  be  taken 
into  consideration,  in  the  moral  appreciation  of  the  facts,  than  as 
the  precise  basis  of  indemnity.  And  such,  I  have  been  assured 
was  the  object  which  Mr.  Sumner  had  in  view  when  he  brought 
them  to  notice  in  his  celebrated  speech  on  the  Johnson-Clarendon 
treaty. 

As  it  is,  the  claims  presented  in  the  "American  case"  are:  1st, 
Those  for  direct  losses  growing  out  of  the  destruction  of  vessels 
and  their  cargoes  by  the  insurgent  cruisers.  These,  which  were 
estimated  at  $14,000,000,  during  the  session  of  the  Commissioners, 
are  stated  in  the  documents  annexed  to  the  "  case"  at  819,0*21,428 
61.  The  second  class  is  for  national  expenditures,  in  pursuit  of  the 
cruisers,  estimated  by  the  Navy  Department  at  $7,080,478  70. . 

These  latter  do  not  seem  to  have  been  the  subject  of  special  dis- 
cussion, nor  are  they  mentioned  in  the  protest  ngainst  the  indirect 


40 

claims  recently  presented  at  Geneva.  Lord  Granville,  however, 
says  in  a  note  of  the  20th  of  March  187*2,  to  General  Schenck; 
i'  Xor  did  Her  Majesty's  government  object  to  the  introduction  of 
claims  for  the  expense  of  the  pursuit  of  the  Alabama  and  other 
vessels,  notwithsanding  the  doubt  how  far  these  claims  though 
mentioned  during  the  conferences  as  direct  claims,  came  within  the 
proper  scope  of  the  arbitration."  There  is  in  the  "case"  a  general 
claim  ibr  the  destruction  of  vessels  and  property  of  the  govern- 
ment of  the  United  States,  but  in  looking  into  vol.  vn.  of  the 
"Claims  of  the  United  States  against  Great  Britain,"  p.  117, 
to  which  reference  is  given  for  details,  no  instance  of  any 
kind  is  to  be  found  except  that  of  the  revenue  cutter  Caleb 
dishing,  said  to  have  been  cut  out  of  the  hai  bor  of  Portland  and 
destroyed  by.  a  tender  to  the  Florida,  the  value  of  which  is  estima- 
ted at  $25,000.* 

The  other  claims  are  those  which  present  the  obstacles  to  the 
further  progress  of  the  arbitrators.  They  are  "  the  loss  in  the 
transfer  of  the  American  commercial  marine  to  the  British  flag, 
the  enhanced  payments  of  insurance,  the  prolongation  of  the  war 
and  the  addition  of  a  large  sum  to  the  cost  of  the  war  and  the  sup- 
pression of  the  rebellion."  These  are  indefinite  in  amount,  and 
may  well  exceed  the  whole  indemnity  paid  or  payable  to  Germany 
by  France,  on  account  of  the  recent  war  between  those  countries — 
for  war  is  carried  on  here  at  a  vastly  greater  expense  than  in  Eu- 
rope. The  "  case"  says — what  we  insert  as  a  specimen  of  the 
indirect  claims — "  The  Tribunal  will  see  that  after  the  battle  of 
Gettysburg  the  offensive  operations  of  the  insurgents  were  con- 
ducted only  at  sea,  through  these  cruisers,  and  observing  that  the 
war  was  prolonged  for  that  purpose,  will  be  able  to  determine 
whether  Great  Britain  ought  not,  in  equity,  to  reimburse  to  the 
United  States  the  expenses  thereby  entailed  upon  them." 

If,  instead  of  determining  the  pending  question,  according  to 
the  understanding  of  the  parties,  we  are  to  consider  the  c;ise  as  we 
would  a  litigated  matter  of  private  contract  between  individuals,  it 
is  by  the  treaty  itself  and  not  by  the  protocol  that  we  are  to  be 
governed.  The  ratification  of  the  Senate  is  essential  to  any  inter- 
national arrangement,  and  it  has,  again  and  again,  been  decided 
that  a  treaty  cannot  be  controlled  by  a  protocol,  unless  the  proto- 
col, as  was  done  in  the  cftse  of  the  naturalization  convention  with 
Bavaria,  is  itself,  in  terms,  ratified  by  the  Senate. 

*  The  destruction  of  the  war-steamer  Hatteras  by  the  Alabama,  as  also  of  a  couple  of 
barks  laden  with  coal,  is  alluded  to  in  the  British  counter-case. 


41 

The  second  article  of  the  treaty  provides  thfit  the  arbitrators 
"  shall  examine  and  decide  all  questions  that  shall  be  laid  before 
them  on  the  part  of  the  government  of  the  United  States  and  her 
Britauic  Majesty  respectively."  Of  course,  the  questions  that  are 
to  be  submitted  are  those  referred  to  in  the  preamble  of  the  1st 
article,  and  which  are  confined  to  differences  "  growing  out  of  the 
acts  committed  by  the  several  vessels  which  have  given  rise  to  the 
claims  generic-ally  known  as  the  Alabama  claims,"  that  is  to  say, 
to  acts  of  these  vessels  in  the  plunder  or  destruction  of  property.* 

According  to  the  British  "  case,"  the  phrase  Alabama  Claims 
is  understood  by  Her  Britannic  Majesty's  government  to  embrace 
claims  "  growing  out  of  acts  committed  by  this  vessel  and  other 
vessels,  which  are  alleg<  d  to  h;ive  been  procured,  like  the  Ala- 
ma,  from  British  ports  during  the  war,  and  under  circumstances 
more  or  less  similar,  and  to  be  confined  to  such  claims." 

It  is  a  received  principle  of  the  jurisprudence  common  to  Eng- 
land and  the  United  States,  that  damages  must  always  be  "  the 
natural  and  proximate  consequence  of  the  act  complained  of." 
Had  this  been  a  controversy  between  individuals,  would  tire  idea  of 
consequential  damages  ever  suggested  itself? 

We  have  had  since  the  commencement  of  our  government 
numerous  cases  of  reclamations  on  belligerent  powers  for  the  vio- 
lation of  our  ireutral  rights,  though  I  only  can  recall  one  treaty  in 
which  the  United  States  were  a  party,  where  damages  were  ac- 
corded by  a  neutral  to  a  belligerent.  1  refer  to  that  of  1794,  with 
Great  Britain,  where  the  claims  on  us  were  analogous  to  those 
which  we  now  make  on  England.  But  neither  on  that  occasion, 
nor  in  the  indemnity  treaties  with  France  and  the  States  allied 
with  her  during  the  reijii  of  the  first  Napoleon,  although  most 
unquestionably  the  effects  of  the  Berlin  and  Milan  decrees,  in 
connection  with  the  British  orders  in  council,  could  in  no  degree 
be  measured  by  the  actual  capture  and  destruction  of  the  vessels 
and  cargoes  of  our  merchants,  was  the  suggestion  ever  made, 
that  indemnity  should  go  beyond  compensation  for  the  value  of 
the  property  taken  or  destroyed. 


*Tlie  expression  in  the  next  sentence  of  the  preamble  would,  it  there  was  any 
thing  equivocal  in  the  preceding  paragraph,  shows  that  the  treaty  was  intended  to  apply 
only  to  direct  acts  of  these  vessels.  The  words  are,  "  Whereas  Her  Britannic  Majesty 
has  authorized  her  High  Commissioners  and  Plenipotentiaries  to  express  in  a  friendly 
spirit,  the  regret  felt,  by  Her  Majesty's  Government  for  the  escape  under  whatever 
circumstances,  of  the  Alabama  and  other  vessels  from  British  Ports  and  for  the  depre- 
dations committed  by  those  vessels  :  now  in  order,"  &c. 


42 

It  may  be  well  to  recall  to  mind  that  the  indirect  damages 
claimed  by  our  "  case,"  as  growing  out  of  the  acts  committed  by 
the  Alabama  and  other  cruisers,  are  precisely  of  the  same  charac- 
ter, if  not  identical  with  those  put  forward  during  the  whole  of 
Mr.  Seward's  administration  of  the  State  Department,  as  a  conse- 
quence of  the  premature  recognition  of  Confederate  belligerency, 
a  ground  of  complaint  which,  though  now  reproduced  in  the  bill 
of  indictment  against  Great  Britain,  was  supposed  to  have  been 
abandoned  before  the  negotiations  of  the  recent  High  Commission 
were  commenced. 

The  only  light,  which  can  be  derived  from  the  terms  of  the  treaty 
itself,  as  to  the  nature  of  the  damages  to  which  the  United  States 
may  be  entitled,  is  from  the  provision  in  the  7th  article  which 
requires  that  the  tribunal  shall  first  determine  as  to  each  vessel, 
"  whether  Great  Britain  has  by  any  act  or  omission  failed  to 
fulfill  any  of  the  duties  set  forth  in  the  foregoing  three  rules, 
or  recognized  by  the  principles  of  international  law  not  incon- 
sistent with  such  rules,  and  shall  certify  such  facts  as  to  each  of 
the  said  vessels" 

As  in  each  case  determined  against  Great  Britain,  the  Board  of 
Assessors  are,  by  the  10th  article,  to  ascertain  and  determine  the 
amount  which  shall  be  paid  by  Great  Britain  to  the  United  States  on 
account  of  the  liability  arising  from  such  failure  as  to  each  vessel, 
according  to  the  extent  of  such  liability  as  decided  by  the  arbitra- 
tors, there  would  seem  to  be  no  room  for  indirect  or  national 
damages.  Besides  the  difficulty  of  deciding  on  a  claim  indeter- 
minable in  its  nature,  there  would  be  the  further  embarrassment  of 
apportioning  the  amount  of  injury  growing  out  of  the  acts  of  each 
vessel  in  the  general  account.  Is  it  possible  that  the  assessors  are 
to  decide  what  part  of  the  prolongation  of  the  war  is  to  be  assign- 
ed to  each  vessel?  Are  they  to' apportion  to  them  respectively  the 
amount  of  losses,  in  the  transfer  of  American  shipping  to  the  British 
flag  and  for  enhanced  insurance  to  which  they  may  be  supposed  to 
have  contributed  ?  If  only  one  case  is  sent  to  the  assessors,  the 
rest  being  found  for  Great  Britain,  are  all  the  indirect  damages  to 
go  with  it? 

I  am  aware  that  there  is  a  provision  that  the  arbitrators 
may,  after  they  have  decided  as  to  each  vessel  separately,  award 
a  sum  in  gross  for  all  the  claims  referred  to  them.  I  cannot, 
however  perceive  how  that  stipulation,  which  applies  merely  to 


43 

the  mode  of  settlement,  can,  in  anywise,  extend  the  scope  of  the 
power  of  the  tribunal  so  as  to  include  claims  not  otherwise  cogni- 
sable before  it.  If  we  were  permitted  to  look  out  of  the  treaty  for 
its  meaning,  we  should  find  that  the  award  of  a  gross  sum  was  the,, 
plan  originally  proposed  by  the  American  Plenipotentiaries,  when 
offering  to  confine  our  claims  to  the  direct  damages,  and  the  in- 
ference would  be  that,  when  used  elsewhere,  the  term  was  to 
have  the  same  scope  and  no  other  than  when  originally  suggested. 
Such  a  mode  of  settlement  would  in  any  event  be  a  desirable  ar- 
rangement. In  case  of  a  decision  in  our  favor  in  respect  to  any  por- 
tion of  our  claims,  it  would  terminate  the  responsibility  of 
England,  and  leave  the  distribution  to  be  made,  as  has  been  the 
case  in  most  of  our  treaties  for  indemnity,  by  the  United  States 
among  their  own  citi/ens. 

The  claim  of  the  United  States  for  indirect  damages  has  been 
attempted  to  be  deduced  from  the  statements  in  the  protocol,  as 
connected  with  the  articles  of  the  treaty,  in  relation  to  the  Alabama 
claims.  We  have  already  shown  that  whatever  might  be  the  rule 
in  Countries  where  the  treaty  making  power  was  wholly  vested  in 
the  executive,  with  us  a  protocol  not  ratified  by  the  Senate,  could 
not  vary  the  obligations  of  a  treaty  any  more  than  the  cor- 
respondence preceding  a  private  contract  could  affect  its 
meaning ;  and  it  is  quite  obvious  that  in  this  case  the  conclu- 
sions having  been  arrived  at  by  the  final  arrangement  of  the 
terms  of  the  treaty,  comparatively  little  importance  might  have 
been  attached  by  the  plenipotentiaries  to  a  paper  which  was  a  mere 
history  of  the  transaction  and  which  did  not  even  bear  their  signa- 
tures. 

It  is  by  the  following  phrase  of  this  protocol  that  our  pre- 
tensions to  present  the  claims,  which  are  here  cited  from  the 
"  case,"  are  deemed  to  have  been  reserved.  After  enumerating 
our  grievances,  it  is  said  :  "In  the  hope  of  an  amicable  settlement, 
no  estimate  was  ma  le  of  the  indirect  losses,  without  prejudice, 
however,  to  the  right  to  indemnification  on  their  account  in  the 
event  of  no  such  settlement?* 

*  It  sometimes  happens  that  the  term  "protocol"  is  applied  to  an  internatio  al  agree- 
ment, drawn  up  with  the  same  formalities  as  a  "convention,"  or  "treaty"  and  authenti- 
cated by  the  Plenipotentiaries  in  the  same  way.  Various  cases,  cited  in  Lawrence's  Whea- 
ton,  Ed.  1863,  pp.  455,  879  will  show  that  even  such  protocols,  when  they  vary  the  treaty, 
ratified  by  the  Senate  can  have  with  us  no  effect.  In  the  present  case  the  protocol  pur- 
ports  to  be  merely  a  jtroccs  re.rbal  of  the  matters  discussed  at  the  sittings,  though  not 
drawn  up  from  day  to  day.  Had  it  been,  there  would,  probably,  Lave  been  no  misunder- 
standing as  to  what  had  been  done,  or  proposed  to  be  done.  It  bears  the  signatures  of 
the  protocolists,  the  secretaries  of  the  English  and  American  Commission  and  not  those 
of  the  Plenipotentiaries,  according  to  the  rule  established  by  the  Congress  of  Vienna.— 
Martens — Guide  Diplomatique  ton  ii.  p.  525. 


44 

Supposing  effect  to  be  given  to  the  protocol,  what  is  the  mean- 
ing of  amicable  settlement?  It  seems  to  us  that  the  true  construc- 
tion of  the  term  is  to  deem  it  as  opposed  to  war,  or  reprisals, 
or,  in  genera]  language,  to  "  unfriendly  acts."  Now  an  agreement 
to  refer  to  mutual  friends  is  certainly  not  an  unfriendly  act.  The 
principle  is  the  same  whether  a  sum  is  offered  and  accepted  in 
satisfaction  of  a  claim,  or,  especially  .in  a  case  where  a  party 
is  under  no  obligation  to  submit  his  cause  to  any  forum,  refer- 
ence is  voluntarily  made  to  arbitrators  to  determine  the  amount, 
if  any,  which  is  to  be  paid  on  account  of  an  existing  difference.  If 
the  conferences  had  been  broken  off,  without  the  conclusion  of  any 
convention,  that  is  to  say,  without  an  amicable  settlement,  the 
rights  of  the  parties  would  have  been  as  they  were  before  the 
commencement  of  negotiations,  neither  having  conceded  anything. 
I  cannot,  however,  believe  that  after  we  had  accepted  from  Eng- 
land an  apology  for  the  escape  of  the  Confederate  cruisers,  induced 
her  to  recognize  new  rules  of  maritime  law,  to  waive  all  demands 
for  the  Fenian  invasions  of  Canada,  and  to  make,  with  mutual 
assent,  various  provisions  as  to  the  other  matters  in  the  treaty,  we 
have  a  right  to  reopen  any  grounds  of  complaint  which  profess- 
edly would  have  been  concluded  by  an  amicable  settlement. 

The  note  accompanying  the.  British  counter-case  delivered  on 
the  15th  instant  to  the  Board  of  Arbitrators  at  Geneva,  states  that 
a  misunderstanding  has  unfortunately  arisen  between  Great  Britain 
and  the  United  States,  as  to  the  nature  and  extent  of  the  claims 
referred  to  the  Tribunal  by  the  1st  article  of  the  Treaty  of  Wash- 
ington. This  misunderstanding  relates,  it  is  said,  to  claims  for 
indirect  losses  under  the  several  heads  of 

"1st.  The  losses  in  the  transfer  of  the  American  commercial 
marine,  to  the  British  flag;  2d.  The  enhmced  insurance;  3d.  The 
prolongation  of  the  war  ah  1  the  aldition  of  a  large  sum  to  the 
cost  of  the  war  an  1  the  suppression  of  the  rebellion,  which  claims 
for  indirect  losses  are  not  admitted  to  be  within  the  scope  or  the 
intention  of  the  reference  to  arbitration." 

When  the  British  protest  was  delivered,  Mr.  Bancroft  Davis,  the 
agent  on  the  part  of  the  United  States,  addressed  a  note  to 
the  arbitrators,  stating  that  u  his  instructions  not  having  contem- 
plated the  probability  of  such  a  course  on  the  part  of  Her  Majes- 
ty's government,  he  reserved  to  his  government  its  full  right  here- 
after to  vindicate  before  the  Tribunal  the  authority,  which  it  un- 
derstands the  Tribunal  acquired  under  the  treaty  in  this  respect." 


45 

It  would  seem  that,  within  a  few  clays,  the  point  in  dispute  in 
reference  to  the  meaning  of  the  treaty  has  occupied  the  attention 
of  Congress,  and  that  it  has  been  suggested  that  the  United  States 
should  withdraw  their  claim  for  indirect  damages.  While  it  is 
universally  conceded  that  no  one  has  ever  had  the  most  remote 
idea  that  any  award  will  be  made  on  their  account,  it  1ms  been, 
as  we  conceive,  very  absurdly  contended  that  having  put  forward 
a  claim,  however  preposterous  we  ourselves  may  deem  it,  our 
•dignity  requires  that  it  should  be  passed  on  by  the  arbitrators. 

To  extricate  ourselves  from  the  dilemma  in  which  we  are  now 
placed,  it  has  been  suggested  that  the  British  government  should 
allow  the  claim  to  go  forward,  with  a  pledge  on  our  part  that  our 
arbitrator  would  concur  in  a  decision  rejecting  it;  and  it  has 
been  alleged,  in  support  of  this  view,  that  a  similar  course 
hal  been  pursued  by  the  Commissioners  sitting  at  Washing- 
ton, in  relation  to  the  Confederate  loan.  But  it  is  said  that  in 
the  case  of  the  Washington  Commissioners,  the  parties  owning 
the  claims  were  individuals;  while  in  the  present  case  the 
government  of  the  United  States  is  a  direct  party.  For  our 
own  part,  believing  that  the  claim  for  indirect  damages  was 
unwisely  presented  in  the  first  instance,  we  cannot  but  think  that 
the  magnanimous  policy  for  the  United  States  to  adopt  would  be 
frankly  to  say  so.  Wi-  cannot  but  believe  that  such  a  declaration 
would  be  preferable,  in  every  point  of  view,  to  bringing  the  matter 
formally  before  the  Board,  with  the  understanding  beforehand 
that  it  should  be  unanimously  rejected,  even  if,  since  the  recent 
action  ot  the  British  government,  such  a  course  should  now  be 
open  to  us.  The  dispute  practically  would  seem  to  have  resolved 
itselt  into  a  mere  question  of  etiquette.  The  United  States  do 
not  make  the  demand  with  the  expectation  of  getting  anything, 
and  all  that  England  insists  on  is  that  this  little  ceremony  of  re- 
jecting the  claims  formally  may  not  be  gone  through. 

An  abrupt  termination  of  the  Geneva  Arbitration  is  to  be  depre- 
cated, not  merely  on  account  ol  the  several  other  matters  in- 
volved in  the  treaty,  which  was  adopted  as  a  whole,  but  the  failure 
of  the  tribunal  for  the  Alabama  claims  would  go  nigh  to  destroy 
all  those  fond  hopes,  which  philanthropists  have  entertained,  of 
substituting  international  arbitration  for  war. 

Whatever  may  happen  with  regard  to  the  Alabama  arbitration,  or 
as  to  the  entire  Treaty  of  Washington,  the  history  of  our  diploma- 
6 


46 

tic  relations  with  England  emboldens  ns  to  say  that  no  conse- 
quences, seriously  affecting  the  material  interests  of  either  country, 
are  likely  to  ensue  from  it. 

The  fact,  as  far  as  our  investigations  have  extended,  does  not 
seem  to  have  been  adverted  to,  that  the  present  is  not  the  only 
arbitration  that  has  been  submitted  to  a  sovereign  power  for  the 
settlement  of  differences  between  the  United  States  and  England. 
In  the  two  which  preceded  the  Treaty  of  Washington,  though 
awards  were  in  both  instances  made,  neither  of  them  was  carried 
into  execution.  It  so  happened  that  both  of  the  former  cases 
were,  to  a  greater  or  less  extent,  matters  of  discussion  during  my 
own  connection  with  the  legation  in  London,  and  the  facts  are, 
therefore,  deeply  impressed  on  my  memory. 

The  origin  of  the  first  case  goes  back  to  the  stipulation  in  the 
Treaty  of  Ghent  of  1814,  that  the  "places  taken  during  the  war 
were  to  be  restored  without  carrying  off  any  slaves  or  other  pro- 
perty." Differences  having  arisen  as  to  the  extent  of  this  provis- 
ion respecting  slaves,  it  was  agreed,  by  the  treaty  of  1818,  to  refer 
them  to  the  arbitrament  of  a  friendly  sovereign.  In  1822,  an 
award  was  made  by  the  Emperor  of  Russia,  and  Commissioners 
on  both  sides  were  appointed  who  met  at  Washington,  to  carry 
the  award  into  effect,  but  disagreeing  as  they  did  from  the  begin- 
ning as  to  the  meaning  of  the  award,  no  progress  had  been  made 
in  the  settlement  of  the  business,  when  Mr.  Gallatin  went  to 
London  in  1826.  At  an  early  conference  with  Mr.  Canning,  the 
latter,  seeing  that  the  discussion  was  likely  to  be  interminable,  pro- 
posed a  compromise,  providing  the  United  States  would  accept  a 
reasonable  sum  en  bloc,  and  an  arrangement  to  that  effect  was  ac- 
complished by  a  convention,  which  abrogated  the  treaty  of  St. 
Petersburg  and  gave  to  the  United  States  $1,204,964.  I  happen 
to  have  before  me  the  statement  of  the  settlement,  showing  that 
the  United  States  received  the  full  amount  of  their  claims,  abating 
one-half  of  the  interest. 

To  a  similar  arrangement  of  the  pending  dispute,  we  have  heard 
no  objection  made,  except  that  Great  Britain  denies  that  there 
is  any  claim  against  her,'  and  this  was  also  the  declared  reason 
why  the  English  commissioners  refused  during  the  negotiations  to 
entertain  the  suggestion  of  a  gross  sum.  She  has,  however,  to  say 
nothing  of  the  indirect  claims,  assented  to  a  reference,  which 
admits  the  existence  of  claims  on  the  part  of  the  United  States  and 
which  may  lead  to  the  award  of  large  damages.  Assuredly  a 


47 

party  by  paying  money  to  buy  his  peace  and  avert  the  danger  of 
being  called  on  for  larger  sums,  does  not  admit  the  validity  of  a 
claim  against  him.  In  the  instructions  to  the  British  Commis- 
sioners laid  before  Parliament,  it  is  said  that,  "  although  Her  Ma- 
jesty's Government  are  of  opinion  that  arbitration  is  the  most  ap- 
propriate mode  of  settlement,  you  are  at  liberty  to  transmit  for 
their  consideration  any  other  proposal  which  may  be  suggested  for 
determining  and  closing  the  question  of  these  claims."  It  would 
SL'em  as  the  only  other  mode  likely  ti  occur,  that  the  B  -itish  gov- 
ernment had  in  view  the  payment  of  a  gros.s  sum. 

It  would  appeal-,  as  well  from  the  circumstances  attending  the 
northern  boundary  controversy,  as  from  the  slave  indemnity 
convention,  that  the  practical  effect  of  arbitration,  as  between  us 
and  England,  is  only  to  prepare  matters  for  direct  settlement.  Hav- 
ing had  confided  to  me,  as  the  representative  of  the  United  States 
in  London,  the  selection  of  an  arbitrator  to  whom  the  boundary 
difficulty  should  be  referred,  and  which  resulted,  in  consequence 
of  the  express  instructions  of  my  government,  in  the  choice  of  the 
King  of  the  Netherlands,  I  was  induced  to  examine  closely  every 
subsequent  proceeding  connected  with  the  matter.  It  will  be  re- 
collected that  our  minister  at  the  Hague  protested,  without  await- 
ing the  orders  of  his  government,  against  the  award,  placing  his 
objections  on  the  fact  that  the  King,  instead  of  deciding  which 
were  the  "  highlands"  of  the  treaty,  had  proposed  a  conventional 
line.  Lord  Falmerston  immediately  instructed  the  British  Minis- 
ter at  Washington  (February  9,  1831)  to  say  that  "His  Majesty 
had  not  hesitated  to  acquiesce  in  the  decision  in  fulfillment  of  the 
obligations  which  His  Majesty  considers  himself  to  have  contracted 
by  the  terms  of  the  Convention  of  Arbitration  of  the  29th  of  Sep- 
tember, 18'JT.  His  Majesty  is  persuaded  that  such  will  be  the 
course  adopted  by  the  government  of  the  United  States."  That 
it  was  unworthy  of  a  great  nation  to  resort  to  the  technicality  of  an 
acute  attorney,  in  order  to  avoid  giving  effect  to  a  sovereign  award 
which  it  had  solicited,  I  was  assured  some  years  afterwards  by 
Governor  Tazewell,  at  the  time  Chairman  of  the  Senate  Commit- 
tee of  Foreign  Relations,  was  the  declaration  of  the  then  Presi- 
dent, General  Jackson,  when  the  decision  was  first  announced  to 
him.  In  consequence,  however,  of  the  remonstrance  of  the  Legis- 
lature of  Maine,  he  wrs  induced  to  submit  the  question  to  .the 
Senate,  accompanied  with  the  declaration  of  his  earnest  wish 
that  the  award  might  be  assented  to.  The  advice  of  that  body 


48 

against  accepting  the  award  went  on  the  ground  that  the  King  had 
not  decided  the  question  before  him.  England  finally  assented  to  our 
course,  and  it  was  only  by  a  direct  negotiation,  as  in  the  other  caser 
that,  in  1842,  our  Northeastern  boundary  line  was  settled. 

It  is  proper  to  state  that,  though  long  familiar  with  the  origi- 
nal American  and  English  "  cases,"  the  preceding  remarks  have 
been  made  in  entire  ignorance  of  what  the  American  counter  case 
may  contain,  and  with  no  other  knowledge  of  the  English  than 
has  been  derived  from  the  newspapers  of  the  day.  From  them, 
however,  we  learn  that  the  "  counter-case"  begins  by  announcing 
that,  to  the  American  imputations  of  hostile  motives  and  insin- 
cere neutrality,  no  reply  will  be  offered,  that  England  refuses  to 
enter  into  a  discussion  of  those  insinuations,  because  it  would  be 
inconsistent  with  her  self-respect,  irrelevant  to  the  main  issue, 
and  would  tend  to  inflame  the  controversy,  that  no  reference  will 
be  made  to  indirect  damages.  It  is  insisted  that  the  only  losses 
which  the  arbitrators  may  in  any  event  take  into  account,  are  those 
arising  from  the  capture  or  destruction  of  ships  or  property.  This 
paper,  as  well  as  the  original  "  case,"  is  said  to  be  the  production 
of  Lord  Chancellor  Hatherly.  * 
W.  B..  LA  WHENCE. 

*  We  have,  since  the  original  publication  of  this  letter,  seen  the  text  of  both  the  Ameri- 
can and  English  "  counter-cases."  It  may  be  proper,  as  bearing  on  the  subject  of  this  let- 
ter, to  give  the  conclusion  of  the  American  paper.  After  refering  to  the  claim  of  a  bellige- 
rent to  be  indemnified  for  losses  occasioned  by  the  negligence  of  a  neutral  government,  it 
thus  proceeds: — "  'Losses  of  which  such  negligence  is  the  direct  and  proximate  cause,  (and 
it.is  in  respect  of  such  only  that  compensation  could  justly  be  awarded,  are  commonly  not 
easy  to  separate  from  those  springing  from  other  causes.' 

"  The  United  States  concur  with  Her  Majesty's  Government  in  the  opinion  that '  a  claim 
on  the  part  of  a  belligerent  to  be  indemnified  at  the  expense  of  a  neutral  for  losses  inflicted 
or  occasioned  by  any  of  the  ordinary  operations  of  war  '  '  is  one  which  involves  grave  con- 
siderations, and  requires  to  be  weighed  with  the  utmost  care.'  Without  the  explanatory 
observations  which  her  Majesty's  Government  reserves  the  right  to  make  in  a  later  stage 
of  the  proceedings,  they  cannot  say  how  far  they  do  or  do  not  concur  in  the  further  state- 
ment that  compensation  can  only  justly  be  awarded  by  the  Tribunal  in  respect  to  losses  of 
which  the  negligence  of  the  neutral  is  the  direct  and  proximate  cause. 

"It  appears  to  them,  ho wever,  that  certain  general  considerations  may  reasonably  be 
assumed  by  the  arbitrators.  1.  Both  parties  contemplate  that  the  United  States  will  en- 
deavor to  establish  in  these  proceedings  some  tangible  connection  of  cause  and  effect  be- 
tween the  injuries  for  which  they  ask  compensation  and  the  'acts  committed  by  the  seve- 
ral vessels,'  \vhich  the  Treaty  contemplates,  are  to  be  shown  to  be  the  fount  of  those  inju- 
ries. 2.  The  Tribunal  of  Arbitration  being  a  judicial  body,  invested  by  the  parties  with  the 
functions  necessary  for  determining  the  issues  between  them,  and  being  now  seized  of  the 
substance  of  the  matters  in  dispute,  will  hold  itself  bound  by  such  reasonable  and  estab- 
lished rules  of  law  regarding  the  relations  of  cause  and  effect,  as  it  may  assume  that  the 
parties  had  in  view  when  they  entered  into  their  engagement  to  make  this  reference. 
3.  Neither  party  contemplates  that  the  Tribunal  will  establish  or  be  gorerned  by  rules  in 
this  respect  which  will  either,  on  the  one  hand,  tend  to  release  neutrals  from  their  duty  to 
observe  a  strict  neutrality,  or,  on  the  other  hand,  will  make  a  course  of  honest  neutrality 
unduly  burdensome." 


49 


OCHRE  POINT,  NEWPORT,  R.  I.,  > 

May  20,  1872.      j 

To  the  Editor  of  the  Providence  Journal: 

Since  I  addressed  you  a  letter  rendered  necessary,  as  I  conceived, 
by  the  announcement  that  the  original  American  "  case,"  including 
the  claim  for  indirect  damages,  had,  before  its  presentation  at  Gen- 
eva, been  submitted  to  me  and  received  my  full  approval,  circum- 
stances have  occurred,  which  have  caused  the  question  with  Eng- 
land, which  then  menaced  a  disruption  of  the  treaty,  to  assume 
new  phases. 

It  may  be  proper  to  mention  that  I  never  saw  the  resolution 
offered  in  the  House  of  Representatives  by  Mr.  Peters,  for  the 
waiver  of  the  indirect  claims,  before  the  publication  of  my  com- 
munication, though  it  was  very  satisfactory  to  me  to  find  an  entire 
coincidence  between  the  propositions  before  Congress  and  the  con- 
clusions at  which  I  had  arrived,  especially  as  regarded  the  meaning 
of  amicable  settlement,  employed  in  the  protocol,  and  as  to  the  utter 
incompatability  of  the  provisions  of  the  treaty,  for  determining 
separately  the  liability  as  to  each  vessel  with  any  claims  that  could 
be  presented  for  indirect  damages.  (See  Appendix.) 

The  admission,  in  the  semi-official  statements  ascribed  to  the 
Department  of  State,  as  well  as  in  the  recent  correspondence  be- 
tween the  two  governments  laid  before  the  Senate,  that  the  United 
States  do  not  and  never  did  contemplate  any  pecuniary  damages 
from  indirect  or  national  losses,  might  well  have  induced  the  belief 
that  nothing  remained  to  embarrass  the  future  proceedings  of  the 
arbitrators.  The  Secretary  of  State  would,  it  was  thought,  without 
strictly  inquiring  into  the  right  of  the  House  of  Representatives  to 
advise  in  relation  to  our  foreign  affairs,  have  gladly  availed  him- 
self of  the  moral  sanction  afforded  by  the  immediate  representa- 
tives of  the  people,  to  escape  from  the  international  embarrassments, 
induced  by  the  too  zealous  advocacy  of  our  supposed  interests, 
by  those  to  whom  the  preparation  of  the  "  case"  before  the  Geneva 
Tribunal  had  been  entrusted. 

Such,  however,  was  not  the  view  taken  by  our  minister  of  foreign 
affairs.  A  negotiation  was  initiated,  the  apparent  object  of  which 
was  to  induce  England  to  afford  us  an  apology,  to  recede  from  our 


50 

untenable  position,  without  appearing  to  yield  anything  which  we 
had  previously  advanced.       ^ 

A  point  has  been  made  in  this  matter,  the  force  of  which  we 
confess  ourselves  wholly  incapable  of  comprehending.  Whether 
tlie  claims  for  indirect  damages,  as  presented  in  our  "  case," — that 
is  to  say,  for  the  enhanced  payments  of  insurance,  the  transfer  of 
a  large  part  of  the  American  commercial  marine  to  the  British  flag, 
and  the  prolongation  of  the  war, — are  avowedly  withdrawn,  or 
whether  they  aie  declared  by  the  Tribunal,  by  our  own  request,  in- 
admissible, has  ever  appeared  to  us  to  present  a  distinction  without 
a  difference.  If,  indeed,  there  was  any  preference  between  the  two 
propositions,  it  would  be,  for  that  course  which,  at  the  earliest  day, 
would  remove  from  notice  pretensions  which  Americans  can  no 
longer  regard  with  satisfaction.  When  we  first  saw  the  "  case," 
we  did  not  advise  the  suppression  of  the  matter  connected  with 
the  indirect  claims,  and  which  embraced  in  its  original  scope  all 
injuries  arising  from  what  we  deemed  unfriendly  acts  of  England, 
going  back  even  to  "  the  premature  recognition  of  rebel  belliger- 
ency," because  we  supposed  that  England  would  object  to  those 
claims  going  before  the  Tribunal,  but  on  account  of  the  prejudice 
which  the  presentation  of  untenable  demands  would  cause  to  our 
meritorious  reclamations. 

The  publicists  of  Europe  have,  it  is  true,  been  occupying  them- 
selves with  the  abstract  point,  to  which  Mr.  Fish  seems  to  have 
attached  so  much  importance.  Among  recent  writings  ot  that  kind, 
which  have  reached  us  within  a  few  days,  and  which  are  under- 
stood to  be  the  same  that  are  alluded  to  in  a  semi-official  announce- 
ment from  the  Department  of  State,  are  articles  from  the  pens  of 
two  eminent  continental  writers,  whose  friendship  it  has  long  been 
my  happiness  to  enjoy,  and  whose  opinions  I  should  be  the  last 
man  to  undervalue.  M.  Rolin  Jaequemyns,  however,  in  contend- 
ing for  the  jurisdiction  of  the  "Tribunal,"  waives  the  question  of 
the  validity  of  the  indirect  claims,  though  he  leaves  little  doubt  as 
to  his  opinion  on  the  subject;  (Quelques  mots  sur  la  phase  nouvelle 
du  cliff erend  anglois  americain.)  While  M.  Pradier  Fodere,  in  insist- 
ing that  the  Board  should  adjudicate  upon  them,  not  only  declares 
them  worthless,  but  maintains  that  if,  from  any  cause,  damages  on 
account  of  them  should  be  accorded,  England  will  have  a  right  to 
decline  to  fulfill  the  awards.  (La  question  de  /'  Alabama  et  le  droit 
des  gens. 


51 

In  considering  the  right  to  object  to  the  discussion  of  a  claim  or 
to  withdraw  from  the  operation  of  an  award  on  a  matter  deemed 
by  one  of  the  parties  not  within  the  competence  of  the  arbiters,  I 
would  remark  that  we  are  not  to  confound  the  character  of  an 
international  tribunal  with  a  "  reference"  under  municipal  laws.  In 
the  latter  case,  judicial  sanction  may  be  given  to  the  act  of  the 
parties,  by  making  it  a  rule  of  court,  and  the  errors  of  law  which 
the  referees  may  make  are  opon  to  revision  by  the  judges  accord- 
ing to  established  forms.  In  the  case  of  sovereign  States,  there  is 
no  tribunal  but  the  one  to  which  they  have  voluntarily  subjected 
themselves,  and  if  they  cannot  interpose  as  to  the  jurisdiction, 
there  might  be  no  limit  to  the  usurpation,  through  ignorance  or 
design,  of  arbitrators  who  might,  in  rendering  their  decisions,  be 
influenced  by  the  political  relations,  changed  perhaps  since  the 
commencement  of  the  reference,  which  their  sovereigns  bore  to 
the  respective  parties.* 

The  only  question  which  can  arise  in  this  matter  is  whether  the 
interposition  in  a  case  where  the  subject  was  not  in  the  contem- 
plation of  the  protesting  party,  shall  precede  or  follow  the  award 
As  to  the  repudiation,  even  of  an  award  already  made,  theie  is  a 
precedent  in  the  diplomatic  history  of  the  United  States  and  Great 
Britain,  to  which  we  alluded  in  our  last  letter.  Though  the  United 
States  asserted,  in  the  case  of  the  northeastern  boundary,  that  the 
King  of  the  Netherlands  had  exceeded  his  authority,  such  was  not 
the  view  of  the  British  government,  who  said,  as  we  now  say,  that 
the  arbiter  was  the  only  competent  judge  of  his  jurisdiction.! 

The  recent  correspondence  transmitted  to  the  Senate,  with  a 
proposed  supplementary  treaty,  discloses  more  fully  than  we  had 

*The  chapter  on  Indirect  claims  in  the  American  argument  enumerates  several  ex- 
ceptions to  the  obligatory  effect  of  an  international  award,  the  first  of  which,  as  given  in 
the  language  of  Pradier  Fodere,  is,  where  a  sentence  has  been  rendered  without  sufficient 
authority  on  the  part  of  the  arbitrators,  or  where  they  have  made  a  decision  outside  or 
beyond  the  terms  of  the  compromise. 

There  is  a  difference  between  the  French  law  and  the  English  Common  law  as  to  the 
obligation  assumed  by  individuals  in  submitting  matters  to  an  arbitration.  By  the  ' 
former,  during  the  pendency  of  an  arbitration,  there  can  be  no  revoention,  except  by  the 
unanimous  consent  of  the  parties,  while  by  the  latter,  a  party  may  withdraw  at  any 
time  before  the  award.  And  though  by  act  of  Parliament,  the  rule  in  England  has  been 
changed,  a  revocati.-m  is  still  admissible  by  leave  of  a  Judge.  In  the  United  States  the 
common  law  has  been  more  or  less  modified  by  the  local  legislation  of  the  several  States. 

tProf.  Geffcken,  formerly  Minister  of  the  HanseaMc  Towns  at  Berlin  and  London,  and 
now  Professor  of  International  Law  in  the  new  University  "1  Strasbourg,  has  discussed 
under  the  title  of  Die  Alalximit,  /-'rage,  the  obligation  of  England  to  allow  the  question  of 
indirect  damages  to  go  before  the  arbitrators.  He  refers  to  the  refusal  of  the  United  States 
to  be  bound  by  the  decision  of  the  King  of  the  Netherlands.  He  says  that,  England  was 
right  in  not  going  before  the  arbitrators,  if  she  had  any  idea  of  not,  being  bound  by  their 
decision,  or  of  protesting  later,  that  the  decision  rendered  involved  a  departure  from  the 
terms  of  the  reference. 


52 

previously  s  tated  it,  the  analogous  case  before  the  board  sitting  at 
Washington.  It  was  professedly  decided  on  its  merits  and  without 
reference  to  the  question  of  jurisdiction,  though  it  was  clearly  out 
of  the  jurisdiction  of  the  commissioners,  whether  the  claim  was  or 
was  not  excluded,  directly  or  by  implication,  in  the  treaty.  The 
claim  was  for  a  part  of  the  confederate  cotton  debt  held  in  Eng- 
land and  was  consequently  one  of  contract,  while  the  convention 
-only  applies  to  acts  committed  against  persons  and  property. 

It  was  moreover  directly  excluded  by  the  Constitution  of  the 
United  States.  The  commissioners  placed  their  decision  on 
what  they  conceived  to  be  the  rights  of  the  United  States 
"to  crush  the  rebel  organization,  and  to  seize  all  its  assets  and 
property,  whether  hypothecated  by  it  or  not  to  its  creditors."* 
It  was  of  course,  within  their  judicial  discretion  to  come  to  another 
conclusion,  on  this  point,  and  fjr  which,  indeed,  they  might  have 
found  as  pretexts  the  decisions  of  English  tribunals,  to  which  the 
United  States  were  recently  a  party,  if  not  judgments  of  our  own 
courts.  But  had  they  done  so,  no  construction  of  international  rights 
and  obligations  would  have  justified  any  department  of  the  United 
States  government  in  recognizing  their  award  :  inasmuch  as  the 
fourteenth  amendment  of  the  constitution  which  is  paramount  to 
all  treaty  obligations,  provides,  among  other  things,  that  "  neither 
the  United  States  nor  any  State  shall  assume  or  pay  any  debt  or 
obligation  incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipation  of  any 
slave,  but  all  such  debts,  obligations  and  claims  shall  be  held  ille- 
egal  and  void." 

[Nor  would  this  have  been  the  tirst  time  that  a  treaty  stipulation 
with  us  has  been  obliged  to  yield  to  a  constitutional  provision.  The 
consular  convention  of  1853  with  France  contains  an  article  of 
which  the  Consul  at  San  Francisco,  1854,  attempted  to  avail 
himself.  The  sixth  amendment  of  the  Constitution  declares  that 

*  The  following  is  the  judgment  in  BAKKETT  vs.  the  UNITKD  STATES. 

"The  Commission  is  of  opinion  that  the  United  States  is  not  liable  for  the  payment  of 
debts  contracted  by  the  rebel  authorities. 

•"The  rebellion  was  a  struggle  against  the  United  States  for  the  establishment,  in  a  portion 
of  the  country  belonging  to  the  United  States,  of  a  new  S:ate  in  the  family  of  nation4*;  and 
it  failed.  Persons  contracting  wiih  the  so  failed  Confederate  States,  voluntarily  assumed 
the  risk  of  such  failure,  and  accepted  its  obligations,  subject  to  the  paramount  rights  ot  the 
parent  State,  by  force,  to  crush  the  rebel  organization,  and  teize  all  its  assets  and  property, 
whether  hypothecated  by  it  or  not  to  its  creditors.  Such  belligerent  right,  of  the  United 
Slates  to  seize  and  hold  WHS  not  subordinate  to  the  rights  of  creditors  of  the  rebel  organ- 
ization, created  by  contracr  with  the  latter;  and  when  such  seizure  vras  actually  accom- 
plished, it  put  an  end  to  any  claim  to  the  property  which,  the  creditor  otherwise  might 
have  had.  We  aie,  therefore,  of  opinion,  that  after  such  seizure  theclaiuiaut  hadiio  inter- 
est in  the  property,  and  the  claim  is  dismissed." 


53 

in  all  criminal  prosecutions,  "  the  accused  shall  have  a  right  to  be 
confronted  with  the  witnesses  against  him,  and  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor." 

The  convention  provides  that  "the  Consul  generals,  consuls,  vice 
oonsuls,  or  consular  agents,  as  well  as  the  consular  pupils,  shall 
never  be  compelled  to  appear  as  witnesses  before  the  courts. 
When  any  declaration  for  judicial  purposes,  or  deposition  is  to  be 
received  from  them,  in  the  administration  of  justice,  they  shall  be 
invited,  in  writing,  to  appear  in  court,  and  if  unable  to  do  so,  their 
testimony  shall  be  requested,  in  writing,  or  be  taken  orally  at  their 
•dwellings." 

There  was  a  real  inherent  embarrassment  in  this  matter,  arising 
from  an  apparent  conflict  of  the  convention  with  the  amendment 
of  the  constitution  as  above  cited,  which  gives  to  defendants 
in  criminal  prosecutions  the  right  of  compulsory  process  for 
witnesses.  This  wras  not  applicable  to  persons  then  exempt. 
As  the  law  of  nations  stood,  when  the  constitution  went  into  effect, 
ambassadors  and  ministers  could  not  be  served  with  compulsory 
process  to  appear  as  witnesses,  and  the  clause  in  the  constitution 
referred  to  did  not  give  the.  defendant  in  criminal  prosecutions  the 
right  to  compel  their  attendance  in  court.  But  what  was  the  case 
in  this  respect  as  to  consuls?  They  had  not  the  diplomatic  privi- 
leges. After  the  adoption  of  the  constitution,  the  defendant,  in  a 
criminal  prosecution,  had  the  right  of  compulsory  process  to  bring 
into  court,  as  a  witness,  any  foreign  consul  whatever.  This  could 
not  be  taken  away  by  treaty.  (Mr.  Marcy,  Secretary  of  State,  to 
Mr.  Mason,  Minister  in  Paris,  September  11,  1854.)  And  in  a  sub- 
sequent despatch,  (October  23,  1854)  Mr.  Marcy  says  that  his  con- 
struction is  sustained  by  the  Attorney  General  and  all  the  mem- 
bers of  the  Cabinet, 

After  the  subject  had  been  referred  to  in  the  President's  Mes- 
sage of  December,  1854,  and  been  discussed  in  repeated  communi- 
cations between  the  two  governments,  in  which  a  modification  of 
the  treaty  had  been  proposed,  to  adapt  it  to  the  provisions  of  the 
constitution,  the  matter  was  finally  settled  by  the  interchange  of 
notes  between  Mr.  Mason  and  Count  Walewski,  of  the  3d  and  7th 
of  August,  1855,  in  accordance  with  a  despatch  of  Mr.  Marcy,  of 
the  18th  of  January.  Among  other  arrangements,  instructions 
were  to  be  sent  to  the  French  Consuls  in  the  United  States  to 
attend  and  testify  according  to  the  treaty,  and  unless  in  cases  of 
7 


54 

actual  inability,  there  was  to  be  no  refusal  thereafter.— Lawrence's 
Wheaton,  ed.  1863,  p.  432.] 

•  It  would  seem,  therefore,  that  so  far  from  the  disposition  which 
was  made  of  the  case  at  Washington  being  an  argument  in  favor  of 
England's  allowing  the  indirect  claims  to  go  before  the  tribunal  at 
Geneva,  the  facts  now  stated   show   that   the   government  of  the 
United  States  ought  to  have  on  their  part  done,  in  the  former  mat- 
ter, what  England  now  proposes  to  do  as  to  the  indirect  claims, — 
relused  to  permit  any  action  of  the  commissioners  in  the  premises.* 

All  that  has  occurred  since  our  last  letter  satisfies  us  that  what 
we  then  endeavored  to  urge,  what  ex-President  Woolsey  and  Rev- 
erdy  Johnson  recommended,  and  what  it  was  the  object  of  the 
resolution  in  the  House  of  Representatives  to  accomplish,  was  the 
correct  course,  if  not  the  only  one,  by  which  the  solution  of  the 
present  difficulties  can  be  attained.  The  President  having  through 
his  agent,  presented  claims,  which,  whether  technically  admissible 
or  not,  all  parties  agree  can  have  no  practical  effect,  he  is  the  compe- 
tent and  suitable  authority  to  withdraw  them.  I  regret  to  find  it 
suggested  in  journals,  with  whose  opinions  on  public  law  it  has 

*  In  relation  to  the  cotton   claims,  the  facts  as  stated  by  Lord  Granville,  in  his  note  of 
March  20,  1872,  to  General  Schenck,  are  as  follows:— 

"On  the  llth  of  November,  in  pursuance  of  the  general  instructions  which  had  been 
given  to  Her  Majesty's  agent,  a  claim  upon  a  bond  issued  by  the  so-called  Confederate 
States  for  a  sum  forming  part  of  a  loan  called  the  'Cotton  Loan,'  contracted  by  those 
States,  and  for  the  payment  of  which  certain  cotton  seized  by  the  United  States  was  alleged 
ed  to  have  been  hypothecated  by  the  Confederate  government,  was  filed  at  Washington  ; 
and  on  the  21st,  I  learnt  from  you  that  the  United  States  government  objected  to  claims 
of  this  kind  being  even  presented. 

"  The  despatches  from  Her  Majesty's  agent,  giving  the  details  of  the  nature  of  the  claim, 
and  ot  the  demurrer  made  to  it  by  the  United  States  agent,  did  not  reach  me  until  the  6th 
of  December.  I  had  in  the  meantime  ascertained  from  Sir  E.  Thornton,  that  the  express- 
ion k  acts  committed'  had  been  used  by  mutual  agreement  in  the  negotiations  which  pre- 
ceded the  appointment  of  the  High  Commission  with  a  view  to  exclude  claims  of  this  class 
from  the  consideration  ot  the  High  Commissioners;  those  words  being  also  used  in  the 
Xllth  Article  of  the  Treaty  with  regard  to  private  claims.  The  question  was'brought  be- 
fore the  Cabinet  at  its  next  meeting  on  the  llth,  and  was  finally  decided  on  the  14th,  as  re- 
corded in  a  minute  by  Mr.  Gladstone.  This  decision  was,  that  the  Confederate  Cotton  claims 
should  not  be  presented  unless  in  case  of  bonds  exchanged  for  cotton,  which  had  thereby 
become  the  actual  property  of  the  claimants,  and  direction*  were  given  for  a  despatch  to 
be  sent  to  this  effect." 

"Information  reached  me  the  next  morning  by  telegraph  ot  the  adjudication,  which  Her 
Majesty's  government  had  not  expected  to  take  place,  upon  the  merits  of  the  claim  by  the 
Commissioners.  This  required  a  reconsideration  of  the  instructions,  and  fresh  instructions 
were  sent  by  the  mail  of  the  23d,  and  also  by  telegraph,  to  Sir  E.  Thornton  to  arrange  with 
Mr.  Fish  that  the  presentation  of  claims  which  appeared  to  be  manifestly  without  the 
terms  of  the  treaty  should  be  withheld,  and  that  when  Her  Majesty's  agent  was  of  opinion 
thata  claim  belonged  to  a  class  that  ought  not  to  be  presented,  it  would  be  desirable  that 
an  agreement  to  that  effect  should  be  made  and  signed  by  Sir  E.  Thornton  and  Mr.  Fish. 
These  instructions  were  communicated  to  Mr.  Fish." 


55 

ever,  heretofore,  been  my  satisfaction  to  concur,  that  the  country 
would  be  degraded  by  withdrawing  pretensions  which  every  one 
now  agrees  were  most  unadvisedly  presented,  I  am  not  aware 
that  there  is  any  difference  in  principle  between  the  rules  of  pri- 
vate conduct  and  those  which  should  control  the  action  of  nations. 
If  an  individual  preferred  a  claim  against  another,  which  subsequent 
investigation  showed  him  to  be  untenable,  can  any  one  doubt  his 
duty  to  immediately  withdraw  it? 

Xot  only  as  it  seems  to  us  would  the  direct  withdrawal  of  these 
claims  have  been  the  course  most  honorable  to  the  United  States, 
and  most  agreeable  to  the  officer  charged  with  the  administration 
of  our  foreign  affairs,  but  it  had  the  advantage  of  not  requiring  the 
co-operation  of  other  parties  at  home  or  abroad.  In  thus  acting, 
the  President  would  have,  in  the  exercise  of  his  legitimate  author- 
ity, not  have  been  exposed  to  the  risk  of  having  his  course  thwart- 
ed by  impediments  growing  out  of  either  parliamentary  or  con- 
gressional controversies.  In  attempting  to  obtain  from  the  British 
government  some  action  by  which  we  may  appear  "in  changing 
front  "  not  to  make  any  concessions,  the  President  has  not  only 
involved  us  in  questions  liable  to  be  affected  by  the  stability  of 
the  English  ministry,  but  has  rendered  necessary  the  assent  of  the 
Senate  to  any  measure  which  may  be  required  to  extricate  us  from 
the  dilemma.  We  certainly  would  not  advise  any  usurpation  of 
the  appropriate  powers  of  that  body,  but  neither  is  it  advisable 
that  the  President  should  divest  himself  of  the  responsibility  at- 
tached to  his  office.  The  new  article  is  not  only  open  to  discus- 
sion on  its  merits,  but,  as  was  maintained  by  Mr.  Webster  when 
President  Jackson  submitted  to  the  Senate  the  northeastern 
boundary  award,  to  the  objection  that  the  action  of  that  body  is 
not  required  in  conducting  or  carrrying  into  effect  the  proceedings 
before  an  arbiter;  nor  can  it  be  doubted  that  the  difficulties  which 
the  executive  would,  in  any  ordinary  case,  encounter  in  procuring 
the  necessary  assent  of  two-thirds  of  the  Senators,  have  been  in- 
creased by  the  partisan  character  which  the  negotiations  have 
been  made  to  assume,  by  the  exclusion  of  a  portion  of  their  mem- 
bers from  the  consultations  to  which  the  President  invited  the 
foreign  committees  of  the  two  Houses.  For  our  own  part,  con- 
sidering, as  we  do,  that  all  questions  connected  with  our  foreign 
relations  should  be  kept  aloof  from  matters  that  divide  us  at  home, 
we  trust  that  no  Senator  will  permit  himself  to  be  influenced  in 


56 

his  vote  by  any  considerations  bearing  on  the  Presidential  elec- 
tion. It  cannot,  however,  escape  observation  that  journals  under- 
stood to  favor  the  elevation  of  a  candidate  to  the  executive  office 
other  than  the  present  incumbent,  are  not  loth  to  take  advantage 
of  the  embarrassments  of  the  diplomatic  labyrinth,  into  which  the 
Secretary  of  State  has,  in  attempting  to  avoid  a  direct  reversal  of 
the  previous  action  of  the  government,  involved  us. 

And  here  we  cannot  refrain  from  suggesting  that  instead  of 
making,  for  a  special  occasion,  a  new  rule  of  international  law,  the 
inconvenience  of  which  in  future  cases  it  is  impossible  to  foresee 
the  subject  should  be  remanded  to  the  executive,  either  leaving  it 
where  the  constitution  places  it,  to  his  exclusive  discretion,  or 
with  a  recommendation  similar  to  that  embraced  in  the  proposed 
resolution  of  the  House  of  Representatives.  Indeed,  the  difficulties 
already  experienced  in  preparing  anything  acceptable  to  the  two 
governments,  and  the  objections  of  a  contrary  character  raised  to 
the  projet  by  different  parties,  would  indicate  a  simple  withdrawal 
of  the  obnoxious  claims. 

No  stipulation  of  a  permanent  character  can  well  be  made  with 
reference  to  the  indirect  losses,  which,  in  the  discussions  connected 
with  the  Alabama  claims,  have  been  frequently  referred  to  as- 
synonymous  with  national  losses,  without  first  establishing  a  more 
accurate  definition  of  such  claims  than  any  recognized  rule  of  in- 
terpretation now  furnishes.  The  national  expenditures  in  pursuit 
of  the  confederate  cruisers  were,  of  course,  incurred  by  the  United 
States,  and  cannot  be  enumerated  among  individual  losses,  yet 
they  are  classed  by  us  among  the  direct  claims,  nor  are  they  enu_ 
merated  in  the  British  protest  against  indirect  claims  as  being  in- 
admissible. It  is,  indeed,  said  in  the  counter  case,  "  it  would  be 
plainly  unreasonable  to  contend  that  if  a  failure  of  duty  could  be 
established  against  Great  Britain,  in  respect  to  a  given  vessel,  all 
that  has  been  expended  by  the  United  States  in  trying  to  capture 
her  must  be  assumed  to  be  chargeable  against  this  country.  But 
the  British  government  takes  exceptions  to  this  class  of  claims 
altogether.  It  cannot  be  admitted  that  they  are  properly  to  be 
taken  into  account  by  the  arbitrators,  or  that  Great  Britain  can  be 
fairly  charged,  at  once  with  the  losses  which  a  belligerent  cruiser 
has  inflicted  during  her  whole  career,  and  with  what  the  United 
States  may  think  fit  to  allege  that  they  vainly  spent  in  endeavor- 
ing to  capture  that  cruiser."  So  far  as  regards  the  present  contro- 


57 

versy,  the  recital,  in  the  proposed  supplementary  treaty,  of  the 
indirect  claims  for  the  "  national  losses  "  which  are  specifically 
mentioned,  viz :  those  sustained  in  the  transfer  of  the  American 
commercial  marine  to  the  British  flag,  the  enhanced  payment  of 
insurance  and  the  prolongation  of  the  war,  (the  national  expendi- 
tures in  pursuit  of  the  confederate  cruisers  not  being  namedj  may 
be  sufficiently  exact  to  show  what  indirect  losses,  claimed  by  us, 
are  to  be  excluded  from  the  action  of  the  tribunal  of  arbitrators, 
but  it  will  not  close  the  doors  against  future  difficulties.* 

It  may  well  be  a  question  with  us  whether  by  now  accepting  the 
compensation  which  we  claim  for  our  expenses  in  pursuing  the 
Alabama  and  other  similar  vessels,  we  are  willing  to  establish  a 
precedent  which,  under  the  plea  of  the  escape  of  a  cruiser  of  the 
other  belligerent  from  any  point  of  our  extensive  sea  coast,  might 
make  us  responsible  for  the  maintenance,  during  any  war  in  which 
England  might  be  engaged,  of  her  entire  navy  alleged  to  have  been 
sent  in  pursuit  of  her.  It  is  to  .be  remembered  that  for  the  ninety 
years  which  have  elapsed  since  the  recognition  of  our  independ- 
ence, we  have  been  neutral  for  more  than  eighty,  and  that  our 
policy  ever  has  been,  the  recognition  of  neutral  rights,  wherever 
they  came  in  collision  with  belligerent  pretensions. 

On  the  other  hand,  ought  not  the  provision,  as  to  indirect  losses? 
if  the  treaty  is  to  be  made  permanent,  be  applicable  to  all  indirect 
cases  of  national  losses,  that  may  arise  from  acts  on  land  as  well 
as  at  sea.  The  terms  of  the  treaty  are  in  substance  that  the  Pre  • 
sident  of  the  United  States  adopts,  for  the  future,  the  construction 
given  by  the  British  government  to  the  claims  which  we  agree  to 
abandon  so  far  as  to  declare  that  it  will  hereafter  guide  the  con. 
duct  of  the  government  of  the  United  States  ;  and  "  the  two  gov- 
ernments are  therefore  agreed  in  this  respect."  The  commission 
under  the  treaty  of  Washington  for  liquidating  the  claims  of  each 
party  against  the  other,  not  included  in  the  provisions  for  the  Ala- 
bama claims,  is  confined  to  such  cases  as  arose  before  the  9th  of 
April,  1865,  and  consequently  the  Fenian  claims  are  excluded. 
Should  they  be  hereafter  brought  forward  as  reclamations  against 
the  United  States,  would  the  proposed  rule,  which  applies  in  terms 
to  the  acts  committed  by  particular  vessels,  by  reason  of  the  want 
of  due  diligence  imputed  to  Great  Britain  in  the  performance  of 

*  We  have  elsewhere  had  occasion  to  call  attention  to  the  fact  that  Lord  Gran ville  de- 
clined to  admit  that  the  claim  for  the  national  expenditures  in  pursuit  of  the  Confede- 
rate cruisers  would  not  have  been  excluded  by  the  supplementary  article  as  modified  by 
the  Senate.— See  Introduction. 


58 

neutral  obligations,  be  applicable  to  the    demands  against  our  gov- 
ernment on  account  of  the  invasion  of  Canada,? 

In  the  protocol  of  the  4th  of  May,  1871,  "  the  British  High 
Commissioners  said  that  they  would  not  urge  further  that  the  set- 
tlement of  these  claims  (claims  of  the  people  of  Canada  for  injuries 
suffered  from  the  Fenian  raids,)  .should  be  included  in  the  present 
treaty,  and  that  they  had  less  difficulty  in  doing  so,  as  a  portion  of 
the  claims  were  of  a  constructive  and  Inferential  character." 

In  alluding  to  the  mal-entendu  between  the  two  countries,  it  is 
only  just,  as  an  evidence  of  the  good  faith  of  England,  to  notice 
the  recent  action  of  the  home  government  in  proffering  to  the 
Dominion,  as  a  consideration  for  her  assent  to  those  articles  of  the 
treaty  of  Washington  which  required  the  ratification  of  the  Cana- 
dian Parliament,  and  as  an  indemnity  for  the  Fenian  claims,  a  guar- 
antee for  a  loan  to  construct  a  railroad  to  the  Pacific.  I  may,  also? 
remark,  in  this  connection,  that  it  is  clearly  inferable  from  the  recent 
speech  of  the  Canadian  Premier,  (Sir  John  Macdonald)  himself 
one  of  the  late  High  Commissioners,  that  Great  Britain  no  longer 
regards  those  claims  to  be  of  a  character  to  be  asserted  by  her 
against  the  United  States,  and  that  the  Dominion  deems  herself 
amply  compensated  by  the  action  of  the  mother  country  as  to 
the  loan  in  question.  The  objections  to  the  fishery  articles,  it  may 
be  added,  do  not  come  from  the  maritime  provinces,  but  from  those 
of  the  interior,  who  wished  to  use  the  fisheries  as  a  lever  for  the 
introduction  of  their  cereals  and  other  agricultural  products  into 
the  United  States,  free  of  duty. 

In  the  English  counter  case,  there  is  an  examination  by  the 
experts,  named  by  the  Board  of  Trade  and  Commissioners  of  the 
Admiralty  to  whom  the  subject  was  referred  by  the  British  govern- 
ment, of  the  extent  of  the  direct  claims,  according  to  the  data  fur- 
nished by  the  United  States.  According  to  the  estimate  made  by 
the  committee  appointed  by  the  Board  of  Trade,  the  total  amount 
claimed  for  private  losses  is  reduced  from  $17,763,010  to  $8,039,- 
685,  and  by  the  Report  to  the  Admiralty  all  the  expenditures  in- 
curred in  the  pursuit  of  the  confederate  vessels  as  claimed  in  the 
United  States  case,  from  $7,080,478  70  to  $1,509,300,  for  the 
pursuit  of  the  vessels  recognised  as  connected  with  Alabama  class. 
Though  the  British  Government  deny  that  any  claim  can  be 
preferred  to  the  Geneva  Tribunal,  for  expenses  incurred  in  fitting 
out  vessels  to  cruise  in  pursuit  of  the  Alabama  and  other  Confed- 


59 

ers,  the  committee   appointed   by  the   Admiralty,  dis- 
3tween   the    expenditures   incurred    in  the  actual  pur- 
>se   vessels  and   the  expenditures  for  them  when  em- 
he  ordinary  duties  of  a  military  marine.     The  last  sum 
s   the    largest  amount  for  which    England    can  in   any 
able.     As  it    is  shown  that,  in  most    cases  of  private 
re   insurance  was   effected,  the  claim  is    presented  both 
inal  owner  and  the  companies,  while,  in  many  instances, 
ctravagant  demands  are  made  for  prospective  profits  it 
n   that  a  compromise,   which  would    avoid    all  further 
ns  at  Geneva,  might,   as  in  former  cases,  after  the  indi- 
cease  to  be  a  subject  of  controversy,  be  possible, 
close  this  communication    without   remarking    that    in 
ons  growing  out  of  the    existing  imbroglio  with    Eng- 
liclue  responsibility  is    imputed  to    our    agent  for  what 
med  the  exceptional  matter   of  the  original  case.     The 
.notion  of  the  two    eminent   ex-attorney   generals,  now 
counsel  to  our  agency  at  Geneva,  was  published  to  the 
before  the  questions  now  pending  were  brought  to  no- 
as  it  is  well  understood  that,  at  all  events,  one  of  these 
was  consulted  during  the  whole   progress  of   the  work, 
?d  that  nothing  not  approved  by    him  was   inserted  in 
case.     The  Secretary  of  State    may,  also,  well  offer  as 
for  any  official  countenance  that  he  may  have  given  to 
the  high  authority  of  Mr.  Gushing    and  Mr.  Evarts. 

W.  B.  LAWRENCE. 


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